Powers of Attorney

A Power of Attorney is a legal document which authorizes a named person or persons (the Attorney) to handle the financial affairs of another person (the Donor). If the Power is to continue after the Donor has become mentally incapable, an Enduring Power of Attorney is required. A Power of Attorney need not become effective immediately and whilst it is never too early to appoint an Attorney, accident or illness can strike at any time and it can, in consequence, be too late.

Power of Attorney
If all that is required is for a person's affairs to be looked after for a temporary period or for the Donor to deal with specific matters an ordinary Power of Attorney will suffice. The Power may be generally unlimited to deal with all the Donors financial affairs or it may be limited to deal with a specific matter e.g. to sell a home. An ordinary Power of Attorney will end if :-

• The Donor becomes mentally incapable;
• The Donor revokes the Power;
• The Power was for a limited period which has expired;
• The Power was for a specific act which has been performed ;
• The Attorney dies.

Enduring Power of Attorney
If it is necessary to appoint somebody to act or continue to act after the Donor has become mentally incapable, then an Enduring Power of Attorney (EPA) will be required. An EPA can be made at any time as long as the Donor is over eighteen years old and retains mental capacity. It is still possible to make an EPA when the Donor is becoming confused provided he or she still understands the purpose of an EPA and what it is.

• Formalities - The EPA must be on a special form in order to be valid. The Donor must sign the form when he or she is capable of understanding the nature of the Power. The Attorney must sign after the Donor has signed but whilst he is still mentally capable.
• Cancellation - An EPA can be cancelled at any time so long as the Donor retains mental capacity. If the EPA has been registered with the Court of Protection any cancellation requires the consent of the Court.
• Registration - The EPA should be registered by the Attorney with the Public Trust Office (PTO) when the Donor becomes mentally incapable. The Attorney must give notice to the Donor and certain relatives of the intention to register the EPA. The Donor or the relatives can object to the proposed registration.
• Death - The EPA becomes invalid upon the death of the Donor. When the EPA has been registered the Court of Protection must be notified that the Donor has died. The affairs of the Donor are managed by his or her personal representatives after death and not by the Attorney.
• Wills - An Attorney cannot make a Will for the Donor although it may be possible in certain circumstances to apply to the Court to make a statutory Will if the Donor is no longer mentally capable of making a Will.

Great care should be taken when granting a Power of Attorney. It may be advisable to have more than one person appointed possibly for different purposes. Where the assets of the Donor are significant or where the Attorney is also a beneficiary under the Donor's Will it is recommended that legal advice is taken at an early stage.

Members of Carter Hodge hold the prestigious qualification of Trust and Estates Practitioners and have the expertise, integrity and reliability that you can expect and can depend upon.