Enduring powers of attorney
By Dawn Lamb of MWR Solicitors
An Enduring Power of Attorney is a legal document which allows a person to appoint an attorney(s) to deal with their financial affairs under the Power of Attorney Act 1985 and is sometimes referred to as an EPA.
This document can be used for many reasons such as if you are unable to sign documents yourself because of a physical injury or disability, or because you want to plan for the future and appoint an attorney to look after your affairs when you may no longer have the mental capacity to do so as a result of a medical condition such as dementia or Alzheimer’s. Another popular use is where a person is going to be out of the country for a considerable period of time and they want their financial affairs to be looked after. You therefore have the choice to appoint an appropriate person or persons to represent you which are known as the attorney(s).
The only legal requirement for creating such a document is that at the time you sign it, you understand the document i.e. you have the appropriate mental capacity.
The Enduring Power of Attorney can relate to a specific asset i.e. the sale or purchase of a property or a particular bank account or shareholding. The attorney(s) can act jointly or jointly and severally (if more than one) i.e. both signatures are required on documents or either one of them – whichever you feel is more appropriate.
The Enduring Power of Attorney remains valid until formally revoked by you in writing however it cannot be revoked once mental capacity has diminished.
A new piece of legislation however is being introduced in April 2007, the Mental Capacity Act 2005 which will change the rules on Enduring Powers of Attorney. If you already have an Enduring Power of Attorney document, this will continue to remain valid after the new Act comes into force but you will no longer be able to make a new Enduring Power of Attorney.
The new Act will introduce Lasting Powers of Attorney which can include decisions not just about your financial affairs but about, for example, Health; i.e. should you have an operation, Welfare; which is the best place for you to live; or Property, do you need to sell your house.
When creating a new Lasting Power of Attorney, it is also necessary that a third party will need to certify that the person creating the power (such as a GP) has the necessary capacity to sign and that they do not do so under any duress or undue influence.
In addition, many people may have heard of a Living Will which is not a legal term. It is referred to in the Mental Capacity Act as an Advance Decision which is about medical treatment you want to refuse and when you want to refuse it. An advance decision must be in writing, signed and witnessed and state that it applies even if life is at risk. If the advance decision says “no” to treatment which may help keep you alive, a doctor must respect this decision.
If a person is not able to make a Lasting Power of Attorney because they do not understand what it means, the Court of Protection will be able to make someone a Deputy for them. The Deputy is there to make the decisions on behalf of that person and to act in their best interests but he/she will be answerable to the Court.
A new service is also being created called the Independent Mental Capacity Advocate (IMCA). This service is for people who do not have any family or friends to help them with decisions involving health services and Local Authority services. The Advocate is appointed to support and represent them by voicing the person’s wishes, feelings, beliefs and values and to challenge the decision maker where appropriate.
It will also become a criminal offence to badly treat someone who may lack capacity whether it is a friend carer or family member.
If you have been thinking about asking your solicitor to prepare an Enduring Power of Attorney for you so that you can nominate a person to deal with your financial affairs, then you must do so before April 2007 when the rules will change. As a result of the new legislation, the cost of preparing a Lasting Power of Attorney is going to be more expensive than an Enduring Power of Attorney as there will be a greater amount of work involved.
Useful links: www.guardianship.gov.uk
For further information, contact Dawn on freephone 0800 731 0717
