Enduring Powers Of Attorney

What is a Power of Attorney?

An enduring power of attorney (EPA) is a document signed by one person (the Donor) to give another person or persons of his choice (the Attorney/Attorneys) the power to act on his behalf and in his name ie to manage his affairs.  A Power may be general, entitling the Attorney to do almost everything the Donor could do himself, or it can be limited in its scope.
There are occasions when the lack of an EPA can cause untold distress and create problems which could have been avoided had an EPA existed.  For example, if a person has a stroke and is advised that he cannot return home to live on his own any more but it is advised that a nursing home is the best solution, then the relations will have great difficulty in selling the patient’s house if the patient is himself unable to give the necessary instructions for sale and eventually sign the contract.  If an EPA exists then the Attorney can sign on the patient’s behalf.

I have been involved on numerous occasions in visiting a sick person in hospital, having to explain to them when they are least able to cope, the technicalities of an enduring power of attorney, added to which there is further stress when the sick person attempts to sign the Deed, even holding a pen requiring too much effort, let alone trying to sign his name.  All this could have been involved had that sick person signed an EPA whilst feeling fit and well.

It is far better to execute an Enduring Power of Attorney when one is fit and well with clear faculties.  If it is never put to use so much the better.  Once signed it can be stored, for example, with the Donor’s Will and perhaps never put to use.  So much the better.  But who can say that they will never have an accident, a stroke, develop Alzheimer’s Disease, become senile and perhaps lose their mental faculties, spend a lengthy period in hospital or become so frail with old age that they would dearly like a “right hand man” to help them with their financial affairs and indeed with other matters that crop up?

To activate an EPA the Donor must authorise his Attorney to register the Power with, for example, his Bank, building society, the DSS regarding his State pension, to name but a few examples.  A Power can also be activated if at any time the Attorney has reason to believe the Donor is, or is becoming, mentally incapable.  If this happens the Attorney has a duty in law to apply to the Court of Protection in London to register the Power as soon as practicable.  A solicitor will be able to advise a non-legal Attorney regarding the necessary action to be taken.

Anyone over the age of eighteen can execute an EPA.  The regulations surrounding the preparation and execution of an EPA are very strict and expert advice is therefore essential as this is not a Deed which can be “home-made”.  Ask your solicitor how much it will cost.  Charges will depend on whether the Power is signed at the solicitor’s office or whether a home or hospital visit is necessary.

The Donor of an EPA has complete freedom in his choice of Attorney and may appoint one, two or more Attorneys who can act for him.  A close relation is one choice but if there is no immediate family, then a solicitor of an accountant is often appointed.  Psychologically this is a good idea where there are other family members who might be suspicious of one member of the family having total control.  With another professional attorney acting the family feels reassured.

The problems are numerous where no EPA has been signed and it is not possible to have one drawn up because the potential Donor is found to be incapable of managing his property and affairs.  In those cases the Court of Protection will take control over that person’s affairs (‘the patient’) by appointing what is known as a Receiver.  The procedure can be lengthy and complicated and once appointed the Receiver must at all times act under the supervision of the Court, rendering annual accounts of income and expenditure to the Court.  There is also a fee payable to the Court based on the value of the patient’s capital.

I can think of many of my own clients, sprightly, enthusiastic people in their 80’s and 90’s with a zest for life, interested in all that surrounds them.  They are a joy to meet and talk to.  A lot of them have heeded my advice and arranged EPA’s in the bloom of good health.  They are content in the knowledge that if one day they do need help with their affairs, they will have the comfort of knowing that they made the decision regarding WHO will provide that help and, equally importantly, that there will be instant help available with no unnecessary delays.

I have often found that after signing an EPA a bond is formed between Donor and Attorney.  From then on the Donor feels he can confide in his chosen Attorney, almost like preparation in case the day ever comes when the Attorney will need to step in to help.  For a person with few relatives or friends left, this can be an ongoing comfort as the Donor will never feel totally alone and helpless.  There is always someone there he feels he can trust, in whom he can confide and who will help him should the need ever arise.