If you were appointed to act as attorney under an enduring power of attorney (EPA) it is still a valid document provided it was signed before 1st October 2007, after which lasting powers of attorney came into effect. However, as senior associate solicitor Shelly Wainwright explains, it may be time to update this as an EPA only allows you to deal with a person’s financial affairs, and you may need legal advice and assistance from the wills and probate team at Ansons Solicitors in Staffordshire
As an attorney under an EPA, if the person you are acting for (the donor) still has their mental capacity then you can only act on their behalf with their agreement. You must do what they want you to do. If you are acting when the donor no longer has mental capacity, then the EPA must be registered before you can act on behalf of the donor. You also need to check the EPA document to see if there are any restrictions about when you can act, for example the donor may only want you to act when they do not have mental capacity and this has been confirmed by a doctor.
If there is more than one attorney named, then you need to check if you are appointed to act jointly or jointly and severally. If you are to act jointly then all decisions must be made by all of the attorneys in agreement. If you are appointed jointly and severally then this is more flexible because all or any combination of the attorneys can act.
If you do need to act the key point to remember is that you are in a position of trust and need to act in the best interests of the person at all times. Under an EPA you can make all financial decisions for the donor such as payment of bills and managing bank and building society accounts among other things. If you need to deal with the donors home, for example if it has to be sold and you are not selling on the open market, then you need to contact the Office of the Public Guardian to check if your need additional permission before you can go ahead. If there is a big decision to be made which may be controversial, then it may be necessary for you to make an application to the Court of Protection for authority to proceed and we can help you with this type of court application.
For advice and guidance on enduring powers of attorney, lasting powers of attorney or any other wills and probate matter, contact Shelly Wainwright on 01543 267984 or email firstname.lastname@example.org.
For more information visit https://www.gov.uk/government/organisations/office-of-the-public-guardian
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date this article was published.