Enduring Power of Attorney?

Date: Mar 23, 2023

An Enduring Power of Attorney (EPA) is a legal document that enables you to choose a person/persons to deal with your property and affairs.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney (EPA) is a legal document that enables you to choose a person/persons to deal with your property and affairs.

The maker of the EPA is known as the ‘Donor’.

The individual the Donor appoints to deal with their property and affairs are known as an ‘attorney’.  An attorney needs to be aged 18 or over, not bankrupt and understand the responsibility of an attorney.

The EPA continues after the Donor becomes mentally incapable of managing their affairs, provided that the EPA is registered with the Office of Care & Protection.

Why make an Enduring Power of Attorney?

The purpose of an EPA is to enable individuals, while they still have mental capacity, to nominate whoever they wish to manage their affairs should they become mentally incapable.

Most people would be of the view that an EPA is just for the elderly. Unfortunately, mental incapacity can happen to anyone at any time whether through accident or through illness, therefore, regardless of age serious consideration to an EPA should be given by all. 

Anyone can put an EPA in place providing they are over the age of 18 years and are mentally capable of understanding the nature of an EPA. If there are any doubts as to mental capacity at the time an EPA is being considered, Mills Selig can advise on the necessary steps that can be taken.

What powers will Attorney have under an Enduring Power of Attorney?

Essentially, an attorney has the power to make decisions, or help with the decision making, concerning the Donor’s property and affairs. Any decisions made by an attorney must be in the best interests of the Donor.

The EPA can be drawn up to include a restriction preventing the attorney from acting unless, and until, the Donor has become mentally incapable of managing their affairs.

Alternatively, if there are no restrictions or conditions inserted into the EPA, the attorney will have the power to act immediately once they have signed the document.  

An EPA may give general authority, authorising the attorney to carry out any transactions on the Donor’s behalf.  Alternatively, the EPA may provide for a specific authority, enabling the attorney to deal only with specific aspects of the Donor’s affairs.

What are the benefits of having an Enduring Power of Attorney in place?

  • An EPA will give you peace of mind that someone you know, and trust, will be in charge of your property and affairs.
  • Your attorney will have access to your finances, for example, if they needurgent access to your bank accounts to pay essential bills, such as electricity, gas, rent, mortgage payments etc an EPA will allow them to access funds.
  • Your attorney can also ensure that the correct amount of income is being received, for example, they can discuss such matters with the Department for Communities or the work pension provider.
  • If required in the long term, your attorney would also have authority to make big financial decisions such as selling your home, removing the worry and burden from you.
  • Importantly, an EPA can protect you from fraud. If you are no longer able to make financial decisions for yourself, this could make you an easy target for fraudsters.

Can the Donor change their mind after the EPA has been signed by all the parties?

Absolutely. A Donor can revoke the EPA at any time providing they still have mentally capacity.

However, the EPA cannot be revoked once mental capacity has been lost unless the Court authorises the revocation.

What could happen if you don’t have an Enduring Power of Attorney in place?

Without an EPA in place, it will be left up to the Courts to determine who should make financial decisions on your behalf, via a Controllership application. There is a risk that they will give that power to someone you would not have chosen yourself.

A Court appointment is altogether more costly and a much lengthier route and should be avoided where possible.

How can the Private Client team at Mills Selig help?

Understandably, the creation of an EPA can be unnerving for some clients, however, it is really important to plan for long term care, so you have a say in what happens to your assets later in your life.

Mills Selig’s Private Client team will take the time to understand your personal needs before putting measures in place to protect your future.

The team also advise clients on the creation of a Will, setting up personal trusts, succession planning and inheritance tax planning.

Editorial by Paula Gibson, Senior Associate, Private Client @ Mills Selig

For further information on all of the above, do not hesitate to contact the Private Client Team at Mills Selig

Learn more: ‘Mills Selig’s Private Client Team reflect on a year of growth and success’

Trusted Resources

Paula Gibson, Solicitor, Private Client @ Mills Selig

Paula is a qualified Trust and Estate Practitioner and is a full member of the Society of Trust & Estate Practitioners (STEP) with expertise in drafting intricate wills and administering complex estates, providing trust advice, setting up and administering trusts.

Paula deals with capacity issues such as mental capacity, controllership and Enduring Powers of Attorney.   She focuses on providing advice to individual clients in relation to inheritance tax, estate planning and nursing care.

T: 028 9044 5409
E: Paula.Gibson@MillsSelig.com
W: https://millsselig.com/team/paula-gibson/

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