Enduring Powers of Attorney
The enduring power of attorney was replaced by the lasting power of attorney on 1 October 2007. Enduring power of attorneys (EPA) signed prior to that date are still valid and can be registered but the lasting power of attorney is more flexible as they provide the option of taking out either a property and financial affairs lasting power of attorney or a health and welfare lasting power of attorney, or both.
If someone still has an EPA and they lose mental capacity, the EPA comes into force but it must be registered, which involves making an application to the Office of the Public Guardian. The Public Guardian protects people in England and Wales who may not have the mental capacity to make certain decisions for themselves, such as about their health and finance.
The authority given by the enduring power of attorney is limited to decisions about the donor’s property and financial affairs. If general authority is given, it provides the attorney with authority to do anything which the donor can lawfully do (apart from making gifts and other statutory limitations). Authority may also be specific to a particular act, for example selling a property.
Attorneys of EPAs
Any adult who is not bankrupt and has mental capacity or any trust corporation can become an attorney if the EPA appoints them. More than one person can be appointed at any one time. When two or more attorneys are appointed the donor must have specified whether they are joint or joint and severable attorneys otherwise the enduring power of attorney is invalid. While joint attorneys provide the donor with protection they must act together. This means that if one dies, becomes bankrupt or ceases to have capacity the enduring power no longer has any effect. Joint and several attorneys can act independently of one another so provide more flexibility but may lead to a loss of protection for example of the donor’s property. A joint and severable power of attorney continues even after one of the attorneys has lost capacity or died.
Creation of a valid power of attorney
A power of attorney must be created in the format prescribed by legislation. It should include all the relevant information with explanatory notes. All of the information must be explained to the donor before it is signed and it must be signed in the prescribed manner by the attorneys in the presence of a witness. If the donor or attorney is physically disabled then the enduring power of attorney must have been signed on their behalf in the presence of two independent witnesses.
Postponing authority to act
Once signed, and providing the donor maintains mental capacity, the enduring power of attorney can be revoked at any time by the donor.
The enduring power of attorney may also be restricted so that the attorneys may only act once the donor is, or is becoming mentally incapable. In this case, the power of attorney must be clearly drafted to delay the authority to act. The authority will arise at the same time as the attorney comes under a duty to register the enduring power of attorney with the Public Guardian.
What authority can an enduring power of attorney provide?
Generally speaking, they are limited to making decisions about the donor’s property or finances, so for example, the selling of a house or buying and selling shares. Even a general power enduring power of authority is limited for example, it does not cover where the donor should live, whether medical treatment should be given or withheld or executing a will for the donor. Whilst it is of little relevance while the donor has mental capacity once mental capacity has gone applications may be required to the Court of Protection to make decisions on behalf of the donor, such as making a will.
Authority to gift the donor’s property
Unless expressly provided, there is limited authority to give away the donor’s property to provide for others. The attorney must consider (i) whether there is a requirement to meet a specific need; (ii) would the donor otherwise be expected to provide for the person’s needs; and (iii) what would the donor have done to meet the need.
Registration with the Public Guardian
Once the donor loses mental capacity the attorney must register the enduring power of attorney with the Public Guardian. The attorney must notify the donor and specified relatives of the intention to apply for registration with the Public Guardian.
- The specified people are:
- The donor’s spouse or civil partner
- The donor’s children whether or not they are illegitimate
- The donor’s parents
- The donor’s brothers and sisters whether or not they are whole or half blood
- The widow, widower or surviving civil partner of a child of the donor
- The donor’s grandchildren
In addition, there are three further remote categories.
Three individuals must be identified working down form the top of the list. All members of a category must be notified once any member of a category is chosen. There is no requirement to notify an individual who is under 18 years of age or him or herself, even if they are a specified relative although they should be included for counting purposes.
Once registered with the Public Guardian, the donor is unable to revoke, extend or restrict the enduring power of attorney.