Frequently Asked Questions about Enduring Power of Attorney

Important Note: The cut-off to make an Enduring Power of Attorney was the 1st October 2007. EPAs are now no longer available. EPAs made prior to midnight on the 30th September 2007 continue to be valid More information about the new Lasting Power of Attorney

What is an Enduring Power of Attorney?

An Enduring Power of Attorney (EPA) is a legal process in which you, the 'donor', give the legal right to one or more people, the 'attorneys', to manage your financial affairs and property.

This power can come into effect immediately, and has the same status as an ordinary power of attorney. This means that your attorneys can manage part or all of your financial affairs for you, or you can continue to manage them yourself while you are able to and hand over responsibility later.

The difference between an enduring power of attorney and an ordinary power of attorney is that an ordinary power of attorney becomes invalid if the donor becomes mentally incapable, whereas an enduring power of attorney remains effective, providing the necessary steps are taken.

If you become mentally incapable, your attorneys will apply to register your EPA (Enduring Power of Attorney) with the public guardianship office. While the registration is being processed, they can use your finances for essentials on your behalf, such as food or payment of regular bills. However, they are not able to arrange larger transactions, such as the sale of your house, until the EPA (Enduring Power of Attorney) has been registered.

You can specify that the EPA (Enduring Power of Attorney) can only come into effect once you become mentally incapable. However, there are drawbacks to restricting the EPA (Enduring Power of Attorney) in this way. For example:

• Even if you are not mentally incapable, you are likely to find it more and more difficult to deal with financial affairs as your dementia progresses. No one will have the authority to take over your responsibilities if you need them to do so.

• Once you do become mentally incapable, no one will be able to act on your behalf during the time that it takes for an EPA (Enduring Power of Attorney) to be registered.

What is the best way to make an Enduring Power of Attorney?

In our opinion the quickest and cheapest way to make an Enduring Power of Attorney is Online

Who can make an EPA (Enduring Power of Attorney) -Enduring Power of Attorney ?

You can make an EPA (Enduring Power of Attorney) if you have a diagnosis of dementia but you must be able to show that you understand what it is and what it is intended to do.

A doctor's advice should be obtained if there is any doubt about your capacity to understand. If the doctor confirms that you are able to understand, it is a good idea for them to witness your signature.

You can also revoke an EPA (Enduring Power of Attorney) if you wish, but only while you are still considered to be mentally capable.

How do I select an attorney?

It is advisable to consider the age and circumstances of any prospective attorney and if they will have the time to make such a commitment.

Also consider whether to appoint one or more attorneys and, if you decide to appoint more than one, decide how they should act.
There are two ways in which they could act: 'jointly' or 'jointly and severally'. If attorneys are appointed 'jointly', they must act together. If one of them dies or resigns, the EPA (Enduring Power of Attorney) is no longer valid, as the Enduring Power of Attorney Act 1985 does not allow for replacements. Other arrangements would then have to be made.

However, if the attorneys are appointed to act 'jointly and severally', they can act both together and sEPA (Enduring Power of Attorney)rately. This means that if an attorney dies or resigns, the surviving attorney(s) can still act.

What are the attorney's powers?

To a great extent this is up to you. Consider what authority you wish to give your attorney(s). You can give them:

• A general authority, which allows an attorney to carry out any transactions on your behalf that you are legally able to delegate
  
• A more limited authority to deal with certain aspects of your property and affairs, as detailed by you on the EPA (Enduring Power of Attorney) form.

Both the general and more limited authority can be qualified by certain conditions or restrictions. You can also appoint different attorneys to have different responsibilities, but it is advisable to keep arrangements as simple as you can.

The kinds of activities an attorney can carry out on your behalf include:

• Signing cheques and withdrawing money from savings accounts
• Buying or selling shares or houses
• Using your assets to finance your residential or nursing care.

The attorney(s) may also have limited powers to use your assets to benefit anyone for whom you might have been expected to make provision, to make gifts on special occasions or to make donations to charities that you are likely to have made.

However, an attorney has no power over you. The attorney(s) cannot direct where you live or what medical treatment or care you receive (this will change after October 2007 when the new Lasting Power of Attorney comes inot force).

What are the attorney's duties?

An attorney is expected to ALWAYS act in the best interests of the donor and to consider the donor's needs and wishes as far as possible.

They must not take advantage of your position to gain any benefit for themselves. They must keep your money and property seperate from their own and from that of other people and they must keep accounts of any dealings they make on your behalf.

How do I register the Enduring Power of Attorney?

When the attorney(s) consider that you have become or are becoming mentally incapable they should notify you and certain close relatives of their intention to register the EPA (Enduring Power of Attorney). Notification must be made on an EP1 form. Your solicitor, or customer services at the public guardianship office, can explain which relatives need to be informed.

An application to register must immediately be made to the public guardianship office on Form EP2, accompanied by the original EPA (Enduring Power of Attorney) document and the registration fee. Forms EP1 and EP2 are available from legal stationers or free from the public guardianship office.

The registration fee was set at £220 in April 2002. However, your attorney can apply for a reduction if paying this fee is likely to cause you hardship. If you are receiving income support, your care home fees are being paid by the local authority or your house is your only asset, the fee will generally be waived. People with savings of less than £16,000 (April 2002-2003 figures) and no property may qualify for a reduced fee of £65. Fees are reviewed each year.

The public guardianship office will hold the papers for 35 days from the date that the last EP1 was sent. This gives you and your relatives time to make any objections. If there are no problems, registration will take place.

Once the EPA (Enduring Power of Attorney) has been registered, the attorney(s) can make binding decisions about your financial affairs. The court of protection can ask attorneys to produce accounts, although this usually only occurs if there has been a query or complaint about the way the EPA (Enduring Power of Attorney) is being handled. There is a charge for checking accounts.

How do I make a complaint about an Attorney?

Attorneys are expected to act 'reasonably' and in your best interests. The public guardianship office and the court of protection do not monitor the way an attorney acts under the EPA (Enduring Power of Attorney). However, they will consider any complaints about the way an attorney acts once the EPA (Enduring Power of Attorney) has been registered. The court of protection will decide whether that person should remain an attorney or whether other arrangements should be made.

What is the court of protection?

The court of protection is an office of the supreme court with jurisdiction in England and Wales. Its function is to protect the finances and property of people who are mentally incapable of dealing with their own affairs. Proceedings are confidential, in order to protect people's privacy, and are kept as informal as possible. Most of the court's business is conducted by post.

What is the public guardianship office?

The public guardianship office is an executive agency within the lord chancellor's EPA (Enduring Power of Attorney) . Its protection division is responsible for the day-to-day administration of cases that come under the jurisdiction of the court of protection. It is also responsible for the registration of EPA (Enduring Power of Attorney)s.

What about Receivership?

If you have not made an EPA (Enduring Power of Attorney) and you become mentally incapable of managing your financial affairs, it may be necessary to appoint a receiver to manage them on your behalf. This is done through the court of protection. However, if managing your financial affairs consists simply of managing your income from benefits, it may be done through appointeeship.

Enduring Power of Attorney and Receivership

There are two ways for your finances to be managed when you are no longer able to manage them yourself because of dementia: 'enduring power of attorney' and 'receivership'. This information sheet explains the processes involved.

It is sensible to make an enduring power of attorney EPA (Enduring Power of Attorney) if you have property, savings, investments or any income apart from benefits. This enables you to select one or more people to act for you now, if you wish, and in the future, should you become mentally incapable. It gives you the opportunity to have a say about your future; it will also make it easier for your carers to act on your behalf in the future.

You can set up an EPA (Enduring Power of Attorney) as long as you are aware of what is involved and can show that you understand the process.

If you don't have an EPA (Enduring Power of Attorney), a receiver may have to be appointed to manage your affairs if you become mentally incapable. This can be complicated and costly.

If you have a query or complaint about an EPA (Enduring Power of Attorney) or receivership, contact the public guardianship office.

Who can become a receiver?

A close relative usually acts as a receiver, but it could be a friend, a bank manager or the local authority. If no one suitable can be found, the court of protection can appoint a solicitor to act as receiver.

A receiver has a considerable number of responsibilities that can be very demanding and time-consuming. Anyone wishing to become a receiver should consider whether they will be able to fulfil the obligations. They should read the free booklets produced by the public guardianship office, Receiver's handbook and Making an application, to ensure that they understand what being a receiver involves.

First steps
The first step is to get the application forms from the customer services unit of the public guardianship office. The customer services unit can also help with queries about the forms, although it cannot give legal advice. The person filling in the forms can apply to be appointed as receiver themselves or ask for someone else to be appointed. The completed forms should be returned to the public guardianship office with the application fee (see below).

The public guardianship office will then assess your needs and write to you to let you know what is proposed. This gives you an opportunity to object if you wish.

If the court is satisfied that this is the right course of action, it will appoint a receiver (or make a short order). Both these arrangements give the person selected the legal authority to manage your financial affairs on your behalf, in accordance with the court's instructions. In either case, the court will set out the exact duties and responsibilities involved.

What can a receiver do?
The receiver will manage your income to ensure that your day-to-day needs are met and bills are paid, that any property is kept in a good state, that your income tax affairs are kept up to date and that important documents are in order and kept safely.

The court of protection must authorise any use of your capital on your behalf. The receiver must liaise with the court about any investments, which are usually made by the court, and about the sale of property, which must be approved by the court.

The receiver should be aware of your needs and wishes and consult you as far as possible on how you would like your money to be spent.
A receiver has to submit annual accounts to the court of protection and take out a security bond to safeguard your assets. They can reclaim the cost from your money.

Short order
In some cases the court may decide to make a short order rather than appoint a receiver. This is a simpler and more limited arrangement and usually occurs when your assets do not exceed £16,000 in cash after debts have been paid (April 2002-2003 figures), or when there is no property to be sold and you do not have a level of income that the court considers needs to be managed by a receiver. A short order may authorise someone:

• To use pensions and trust income on your behalf
• To receive and use for your benefit some or all of your money held in a bank or building society
• To pay care home fees and any other debts and expenses
• To make sure any documents and valuables are safely looked after.

Fees
There are a number of fees. The public guardianship office can give details of who is eligible for remission. Generally, people with assets of less than £16,000 (April 2002-2003 figures) can apply to have their fees reduced.

As of August 2003, the public guardianship office charges are:

• £70 for both a receivership and short order application
• £515 when the court appoints a receiver - this does not apply to short order arrangements
• An annual fee of £220 on the anniversary date of the appointment of a receiver - this does not apply to short order arrangements

There may also be fees if the court has to approve or authorise transactions or services for the receiver. The public guardianship office can give details. Fees are reviewed each year.