Enduring Power of Attorney & Capacity Issues
What is a Power of Attorney / Enduring Power of Attorney?
A Power of Attorney enables you to choose a person/or persons (called an attorney) to deal with your property and affairs. Whereas a Power of Attorney ceases in the event of you becoming mentally incapable of managing your affairs an Enduring Power of Attorney will continue. It is important to remember that mental incapacity can happen to anyone at any time e.g. by accident or through illness.
When can an Enduring Power of Attorney be made?
You can grant the power at any time provided you are over 18 years of age and mentally capable of understanding what the Enduring Power of Attorney is.
How do I appoint an Attorney?
It is advisable to seek legal advice as careful consideration should be given to the range of powers you wish to give to your attorney. These should also be agreed with your attorney.
Do I have to give my Attorney full powers over all my affairs?
No. You can limit the power to certain parts of your affairs, for example, you may wish them to handle your money but you might want to exclude the sale of your dwelling house from their power.
When does the power take effect?
It takes effect as soon as the attorney signs unless you have included any conditions or restrictions about when the power should commence.
Can I change my mind at any time?
Yes. You can cancel or amend the Enduring Power of Attorney at any time while you are mentally capable. For example if the attorney you have chosen dies or becomes incapable or no longer wishes to act on your behalf you will need to appoint a new attorney.
What happens if I become mentally incapable?
If your attorney(s) have reason in the future to believe that you are becoming or have become mentally incapable of managing your affairs they will have to apply to the High Court (Office of Care and Protection) for registration of this power. You will receive notification of the attorney’s application to the court. The court may question the attorney’s handling of your affairs and may cancel his power at any time if it is not satisfied that the attorney is acting in your best interests.
What if there is no Enduring Power of Attorney?
If someone who is, or is becoming, mentally incapacitated has not already created an enduring power of attorney, and you wish to manage their financial affairs, you will need to apply to the Office of Care and Protection to be appointed as a controller. We can assist you with preparing and making the application to the Office of Care and Protection. If the Office of Care and Protection appoints you as a controller, you will take control of the person’s financial affairs and property and act on their behalf. You will be required to open a bank account in your own name as controller and you will need the permission of the Office of Care and Protection before making any decisions about capital, such as the incapacitated person’s home or other property. You will usually be required to present yearly accounts of the person’s finances.
In certain cases, where the incapacitated person’s assets are valued at less than £16,000, you can usually apply to the Office of Care and Protection for directions that, if granted, mean that the Office of Care and Protection does not need to appoint a controller. This is a less formal arrangement, but every situation still needs to be fully assessed individually by the Office of Care and Protection in order to decide whether directions would be appropriate.