EPA between spouses

sanfly

Willman_Rodders wrote: »

Hi Margaret,


the EPA is scheduled to be replaced on 1st October 2007 with the Lasting Power of Attorney - a far more comprehensive document that will require registration at the time of execution. Costs remain unknown but £1,000+ is being talked about. An EPA, made before the 1st October 2007, will remain valid (the Government have said.)

The points made earlier in this post, however, about the risks remain. Think carefully about your choice of attorney. My suggestion would be ...

1. each make an EPA (before 1st October 2007 - and remember it takes time to complete an EPA);
2. include specific power limitation clauses (I am not sure yours is 'tight' enough; your solicitor will offer guidance); and
2. keep control of the original document, placing it with your will and lodged with your solicitor.

Hope that helps a little more.

Rod

.

Hi, Could you please clarify the statement above about making an EPA before the 1st October 2007, does the EPA have to be registered before that date, to avoid the potential new £1000 charge,or just filled in, signed and dated by the witness etc, before that date and not registered ...thanks

margaretclare

sanfly wrote: »

Hi, Could you please clarify the statement above about making an EPA before the 1st October 2007, does the EPA have to be registered before that date, to avoid the potential new £1000 charge,or just filled in, signed and dated by the witness etc, before that date and not registered ...thanks

According to what Willman Rodders writes - yes, the Power of Attorney if made after 1st October is registered at the time. Not as applies now - the POA is only registered with the Court of Protection when it's actually needed.

I take that to mean that if a couple make a POA between them, or e.g. an older person with a son/daughter, the POA is effective immediately, even if the older person is still hale and hearty and able to conduct own affairs. The idea of making these is 'just in case' i.e. one could be involved in a severe accident, wake up one morning having suffered a damaging stroke, but equally, these scenarios might not happen, in which case the POA doesn't need to come into effect. As I understand it, the legislation due to come into effect later this year means that the POA would come into effect immediately.

Why this change is thought to be necessary, who knows. There is such a thing as 'elderly financial abuse' and the mind boggles.

Margaret

[Deleted User]

http://www.citywire.co.uk/News/NewsArticle.aspx?VersionID=92768&re=1359&ea=3040

I don`t like the idea of lasting poa. I like the epa because only my dh and I have copies and it can be torn up at any stage, so we still have final contol

Biggles

sanfly wrote: »

Hi, Could you please clarify the statement above about making an EPA before the 1st October 2007, does the EPA have to be registered before that date, to avoid the potential new £1000 charge,or just filled in, signed and dated by the witness etc, before that date and not registered ...thanks

If you make an EPA now, it will remain valid after 1 Oct 07, whether or not it is registered, and you will still be able to register it if and when the donor loses 'mental capacity' (the registration fee goes up from £120 to £125 from 1 Oct).

margaretclare

kittie wrote: »

I don`t like the idea of lasting poa. I like the epa because only my dh and I have copies and it can be torn up at any stage, so we still have final contol

Kittie, I completely agree with you. I would not consider doing this following the changes from 1st October. As long as DH and I remain in possession of all our faculties there would be no need to consider such an extreme step. No doubt someone will come and say to me 'why be so cynical, can't you trust your son/daughter?' Well, all I can say is, I would rather not put temptation in someone's way.

Margaret

Willman_Rodders

Hi Sanfly, kittie, margaretclare, biggles ...

Reading these later posts there are a couple of points I feel I need to clarify regarding my earlier posts. More information is being made available as we approach the 1st October LPA implementation date and new information booklets on the topic of the old EPA and the new LPA are now available from ....

http://www.guardianship.gov.uk/

and follow the link 'General information booklets about the Mental Capacity Act 2005' at the bottom of the page. Then select ...

Booklet 1 - For people who may be unable to make some decisions for themselves/ who wish to plan ahead for the future

or

Booklet 2 - For family, friends and unpaid carers

(Or, as I have just found out ... just click on the links above)

Both booklets are downloaded as PDF files.

The booklets explain about the two types of LPA that will be available.

Sanfly you asked ...

Hi, Could you please clarify the statement above about making an EPA before the 1st October 2007, does the EPA have to be registered before that date, to avoid the potential new £1000 charge,or just filled in, signed and dated by the witness etc, before that date and not registered ...thanks

The answer is ... no the EPA does not have to be registered by the 1st October 2007 - but it should be complete in all respects with the document signed and witnessed by all parties involved. In my experience getting the attorneys to complete the document takes a surprisingly long time when they are not local to the donor.

One main difference, as I see it, between an EPA and and LPA (Property and Affairs) is the time when registration at the Court of Protection must be made. You can make an EPA today and your attorneys can act upon that EPA immediately, but registration of the document is not formally required until the donor (the person giving the power) is deemed to have lost their mental capacity. This means that subject to any restrictions to the contrary contained within the EPA your attorney can help the donor with financial decisions even though the donor still has mental capacity. This, in my opinion, is more flexable than ...

with an LPA (Property and Affairs) the attorney cannot take any action [based on the LPA] until the LPA has been registered.

Nevertheless, I must correct my earlier point that the new LPA must be registered at the time it is made. I was led to believe that the new LPA contained a declaration about understanding the document, its implications, and any undue influence in making the document. My understanding was that this statement had to be witnessed by an authorised third party and was time limited - thus the LPA had to be registered within a set period of time from completion. Reading these afore mentioned .pdf booklets it appears I am wrong; you can complete your application form, including the declaration, but you do not have to register it within a fixed timeframe - you can do as you do with your EPA presently, and that is leave the document until you loose mental capacity at which time your Attorney must register the document.

My sincere apologies to margaretclaire, kittie, and any other readers who I may have misled. All I can say in my defence is we keep on finding more information 'on the drip' and each drip adds a little clarity to what will eventually occur. But, still, I'm sorry.

The final costs of administering an LPA appear to be more expensive than the EPA. Biggles has highlighted the initial EPA registration fee; both the LPA and EPA have sizeable fees when it comes to registration and subsequent administration - though again I can't trace any definite fee structure being quoted at present. The previously 'linked' to websites include discussion documents of proposed fees.

The cost of preparation of an LPA is also likely to be significantly more expensive than an EPA. An EPA is 5 to 6 pages long; Kittie's article refers to an LPA being 25 pages long. Solicitors charges £50+ for an EPA; what will their charges be for an LPA?

jennifernil

Are these changes only for England and Wales? Or will they also apply in Scotland?

Biggles

jennifernil wrote: »

Are these changes only for England and Wales? Or will they also apply in Scotland?

As ever, things seem to be entirely different in Scotland.

A quick Google brings up lots of info.
Try http://www.scotland.gov.uk/Topics/Justice/Civil/16360/4932

[Deleted User]

Thanks to WR for always being helpful

Our epa`s are signed and witnessed and stored in an envelope where only we two know. We also trust our daughter but final control will always be ours as long as either of us is capable of tearing the documents up

morganlefay

Margaret, I can see you're all sorted out now, but just a thought for anyone else reading this. I looked after my very old Ma's affairs until she died in April, she had Alzheimers and the POA I had meant I could do everything that she would have done (write cheques for her, pay all bills, make decisions about financial affairs etc). At a local meeting of the Alzheimers Soc. we had a talk by a solicitor who sugested that its a good idea for husbands and wives to give each other a poa, and also for both to give one to any children they feel they can trust. We have two wonderful daughters, so we now have (locked safely away in OUR filing system):a POA for each of my OH and me, and two more, one for each of us for our daughters 'jointly and severally' to look after our stuff as and when and if....... But I think the key thing is that WE have these as we understand absolutely that they are powerful documents which you want to put away and hope never to need. By the time I had to start using my Mum's she had forgotten doing it and was not really able to understand what was going on, so it caused her no pain but enabled me to take care of her properly. All this is, of course, based on the trustworthiness between families, and I do know that can be very difficult at times. HTH.