Attorney refusing to register Enduring Power of Attorney ??

sc52

An EPA was set up for my mother-in-law 4 years ago, the attorneys to be her son and daughter (my wife). Unfortunately my M-in-L is no longer capable of controlling her own affairs. It has been a gradual process and initially she just needed a little bit of help and this , due to proximity, was provided by her son.

But she has steadily declined and for quite some time hasn't been able to manage at all (she is now in a home). Unbeknown to my wife, at the beginning of the year the son consulted the solicitor who drew up the EPA about having it registered. But I believe that when he was told that under the terms of the EPA everything was going to require joint signatures and that he would therefore loose total control of the donors financial affairs - he decided to take the matter no further.

The son has now assumed total financial control despite having been told by the solicitors that "you have a duty to apply to the court of protection for registration of the EPA when you have reason to believe that the donor has become or is becoming mentally incapable of managing their affairs".

(The son is unaware that we know of his visit to and subsequent correspondence with the the solicitor.)

I have spoken to the Office of the Public Guardian, who say that both signatures are required to register the EPA but had no advice as to what to do in this case. I asked what the penalties were for non compliance - from what they said there don't seem to be any!?

So what happens if the son refuses to sign the documents required to register the EPA.? Can he be forced to?

Willman_Rodders

SC52 ...

Not only is your BIL in breach of the law but so too is your wife; as an attorney she too has an obligation to register the EPA once your MIL has lost her capcity to make decisions on her own.

It might have been inconvenient in the past for two people to sign all transactions but now the donor (i.e. your mother-in-law) is in care the administration is much simpler, normally just requiring direct debits to be set up for all payments.

Please see:

http://www.publicguardian.gov.uk/concerns/suspect-abuse.htm

The MIL chose to nominate both her children to work jointly for a reason. The son is leaving himself wide open to claims of financial abuse if the MIL lacks capacity to make decisions of her own.

Biggles

Presumably the EPA is worded 'jointly' and not 'jointly and severally'? And presumably they were both happy with that arrangement when the solicitor explained the implications and they signed the form?

I agree with WR, your wife should go to the solicitor and insist on registering the EPA if her brother won't.

However, I assume your wife has been happy with the way her brother has been handling the finances to date? It may well be that her brother can carry on doing what he does now. To open any new accounts etc, they would both have to sign initially. But if payments are electronic and he has online access, she may not need to be involved too much (unless she wants to be). The bank may even agree to either signing cheques rather than insisting on the two.

sc52

Thank you for your replies.

"Not only is your BIL in breach of the law but so too is your wife; as an attorney she too has an obligation to register the EPA once your MIL has lost her capcity to make decisions on her own".

takes both to sign - hence the original question.

My BiL clearly believed that the EPA should have be registered some time ago (hence his trip to the solicitors) - but he pulled back (and managed to bury it) when he realized that by registering he would loose control (EPA worded - Jointly).

My wife has suspected for some time that left alone her Mum might struggle with but without her brother confirming it she assumed that her Mum was, with help, managing. The change from being capable to not being capable is not an on/off switch. My MiL has never dealt with finance - her husband (died over a year ago) always used to do that, and so hard to tell whether it's due to inexperience or whether it's down to failing mental health.

"However, I assume your wife has been happy with the way her brother has been handling the finances to date? It may well be that her brother can carry on doing what he does now. To open any new accounts etc, they would both have to sign initially. But if payments are electronic and he has online access, she may not need to be involved too much (unless she wants to be). The bank may even agree to either signing cheques rather than insisting on the two".

No - not any more - there is big difference in reminding her to collect her pension / making sure all the bills were transferred into her name etc and putting her in a home / selling the house.

"Not only is your BIL in breach of the law but so too is your wife"

So, as per OP -

What happens if the brother refuses to sign the document to register the EPA? What is the penalty for " the breach of the law"? Who do you report it to?

Biggles

The way you are wording it now makes it seem that she has not actually lost what is defined as 'mental capacity', then, but perhaps just finds it hard to handle the finances?

If she understands what's going on, and is able to discuss her affairs with her son and sign documents (even though she doesn't understand about finance), there may be no necessity to register the EPA yet.

However, your wife should try to keep the situation under discussion with her brother in order that they both know when that moment has arrived.

However, looking after the odd bank account is one thing. But there's absolutely no way your brother could sell her house without registering the EPA unless his mother is able to keep signing all the necessary documents. And, if it's the same solicitor involved, I can imagine him raising the subject of the EPA immediately.

Willman_Rodders

My wife has suspected for some time that left alone her Mum might struggle with but without her brother confirming it she assumed that her Mum was, with help, managing. The change from being capable to not being capable is not an on/off switch. My MiL has never dealt with finance - her husband (died over a year ago) always used to do that, and so hard to tell whether it's due to inexperience or whether it's down to failing mental health.

The Mental Capacity Act 2005 has guidance notes (500 pages) for establishing mental capacity. The act allows for the fact that people can make some decisions and not others, and that they can make a decision at one time and yet be unable to make the same decision at another time. Also, that although the person may make the wrong decision this is not a sign that the person cannot make the decision.

Has your wife actually established the condition of her mother? From your post it appears not.

sc52

Thanks again for your prompt replies.

I think the EPA definitely needs to be registered asap, as the brother has started making financial decisions without consultation.

Will get my wife to sign her section of the form and then see what her brother does. If he refuses to sign it we'll have to get the solicitor to pursue it.

With regard to MiL's mental capacity - I'll ask my wife if any sort of assessment has been done - and if not start by making an appointment with MiL's GP?

localhero

sc52 wrote:

I think the EPA definitely needs to be registered asap, as the brother has started making financial decisions without consultation.

Will get my wife to sign her section of the form and then see what her brother does. If he refuses to sign it we'll have to get the solicitor to pursue it.

I'm sorry to have to say this - but unless all parties signed the Enduring Power of Attorney before 1st October 2007 then it is invalid.

In which case you will have to obtain a Lasting Power of Attorney if the individual still has the capacity to do so - otherwise you will have to make an application to be a `deputy`.

This will inevitably be expensive and your solicitor is staring down the barrels of a negligence claim.

Biggles

sc52 wrote: »

I think the EPA definitely needs to be registered asap, as the brother has started making financial decisions without consultation.

Will get my wife to sign her section of the form and then see what her brother does. If he refuses to sign it we'll have to get the solicitor to pursue it.

In theory, he only needs to 'consult' with his mother if she is still able to make decisions, not with your wife, as he isn't acting, or attempting to act, under the EPA.

localhero wrote: »

I'm sorry to have to say this - but unless all parties signed the Enduring Power of Attorney before 1st October 2007 then it is invalid.

I think he means sign the form for registration of the EPA, not sign the EPA itself.

Biggles

sloughflint wrote: »

But even if she was still able, surely anything that he did on his mother's behalf would be acting under the EPA....in which case why hasn't the issue of two signatures already arisen? Registration of the EPA makes no difference to the way the document needed to be used historically

Exactly. Which is why he must be acting under his mother's authority and not under the EPA - in theory at least.

Since the OP's wife doesn't know her mother's current mental condition, it's hard to say there's anything wrong with that.

Biggles

sloughflint wrote: »

Still confused about that in view of the section I highlighted from the EPA registration form.

From the guidance notes: "This section does not apply if the Attorneys are appointed jointly – as this would mean that they would both (or all) have had to make the application with you because the Donor appointed you to act together"