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Enduring Power of Attorney (again)

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  • royeee
    royeee Posts: 126 Forumite
    Further to this, does the pages have to be stapled together and/or initialled by donor and/or witness to show they are all from the same set?
  • Hi Royeee,

    The Public Guardianship Office will rely on the integrity on the parties and their witnesses not to backdate the documents. Whether they were to check later is unlikely (but possible), but in any case I would not recommend taking that chance.

    The most common restriction is for the power to be postponed until mental capacity has been lost, with general power to deal with all the donor's property and affairs.

    The Powers can be as specific as you wish, ie to deal with only certain property or investments - up to certain amounts, such as buying and selling shares for example or to buy or sell the donor's freehold property.

    But even an EPA giving general authority is significantly limited. It does not cover such matters as where the donor should live, whether or not medical treatment should be given or withheld or the execution of a will for the donor.

    It does however allow the attorney to make gifts on the donor's behalf (including to the attorney(s) themselves) if it follows a pattern of the donor doing so in the past - for example birthday/Christmas/wedding presents.

    It is therefore essential that you trust your Attorney(s) completely. Obviously appointing more than one to act jointly with the other provides protection for the donor but can be inconvenient.

    There are also certain safeguards built in such as the need for registration once mental capacity has been lost and notifying the donor and their close family of your intention to do so.

    Yes, the pages should be bound together, and no each page need not be signed. I generally use eyelets to bind mine, but the humble stapler would also suffice.

    Finally, the procedure for granting a Power of Attorney will shortly become more cumbersome (and expensive), so it's advisable to act this month if it's something you're considering.
    [FONT=&quot]Public wealth warning![/FONT][FONT=&quot] It's not compulsory for solicitors or Willwriters to pass an exam in writing Wills - probably the most important thing you’ll ever sign.[/FONT]

    [FONT=&quot]Membership of the Institute of Professional Willwriters is acquired by passing an entrance exam and complying with an OFT endorsed code of practice, and I declare myself a member.[/FONT]
  • royeee
    royeee Posts: 126 Forumite
    Excellent thanks.

    Regarding imposing the restriction will words to this effect ensure this is legally valid [the 2nd sentence if I decide to include this]:

    This Enduring Power of Attorney is not to come into effect unless and until I become incapable of managing my own affairs or I become mentally incapable. I and my close family are notified of intention to do so.
  • The 'or I become mentally incapable' amounts to the same thing as the words before and is therefore unnecessary.

    The second sentence is also unnecessary as the law dictates that they have to notify you and your closest family anyway.
    [FONT=&quot]Public wealth warning![/FONT][FONT=&quot] It's not compulsory for solicitors or Willwriters to pass an exam in writing Wills - probably the most important thing you’ll ever sign.[/FONT]

    [FONT=&quot]Membership of the Institute of Professional Willwriters is acquired by passing an entrance exam and complying with an OFT endorsed code of practice, and I declare myself a member.[/FONT]
  • pboae
    pboae Posts: 2,719 Forumite
    1,000 Posts Combo Breaker
    An update for anyone who followed this, we ended up going through the solicitor to do them, because we were getting wills drawn up at the same time, so the cost was minimal.

    The EPA I have now is worded virtually the same as the one on the website, with no additons. I asked the solicitor about including a paragraph saying, when I become incapable, or when I decide, and he said you couldn't do that. There are only 2 types of EPA one which can be registered at any time (but only with the donors permission) and one which can only be registered at a specific time (i.e. when the donor becomes incapable).

    So to cover both cases you need the first type with the line in that says 'I intend this to continue even if I become mentally incapable'. Then you just need to ensure it is stored securely so that it cannot be registered without your knowledge.

    HTH someone else :-)
    When I had my loft converted back into a loft, the neighbours came around and scoffed, and called me retro.
  • Biggles wrote: »
    The fact is, if you don't want your attorney(s) to use the PoA, you hold onto it. Simple as that. Without actually possessing the form, they can do nothing.

    How can you "square the circle" between this and the need for an "off site" certified copy - in case of a fire, for example?

    PS. There is another thread on EPA's in the "Anything Else ..." forum.
    The acquisition of wealth is no longer the driving force in my life. :)
  • pboae
    pboae Posts: 2,719 Forumite
    1,000 Posts Combo Breaker
    Mine will be stored at the solicitors with my will (at no cost) with instructions on when they are allowed to release it to a 3rd party (i.e. upon my written instructions, or when accompanied by confirmation from my GP or consultant that I am (or am becoming) mentally incapable).

    I'll keep a photocopy at home, with a copy of a will, and instructions on where to find the original.
    When I had my loft converted back into a loft, the neighbours came around and scoffed, and called me retro.
  • Biggles
    Biggles Posts: 8,209 Forumite
    1,000 Posts Combo Breaker
    royeee wrote: »
    As I understand it I download the EPA form, fill them in as appropriate and then get them signed (donor, attorneys, witness) and retain the copy. It will be signed as dated. As new EPAs are only acceptable up to the end of this month and considering someone does the EPA after 1st October and 'backdated' by putting a date of before 1st October how does one know if this genuinely done before 1st October?
    The answer is that nobody will know. Normally. But remember that - at the very least - three people WILL know: the donor, the attorney and the witness. Maybe several attorneys & witnesses. If things should go pear-shaped within the family at some stage in the future and someone tells the Court of Protection, the last thing you'll want is that the EPA is invalidated and you're done for fraud. I wouldn't risk it.
    Another question does anyone or in what circumstances would one want to restrict the powers of the Attorney such as not to deal with the donor's property?
    As already mentioned, you need to trust your attorney(s). And if you limit their powers so much that, eg, they couldn't sell your house, it could lead to big financial problems and delays if you lost mental capacity and went into care.
  • Biggles
    Biggles Posts: 8,209 Forumite
    1,000 Posts Combo Breaker
    pboae wrote: »
    There are only 2 types of EPA one which can be registered at any time (but only with the donors permission) and one which can only be registered at a specific time (i.e. when the donor becomes incapable).
    There's really only one type of EPA.

    If you are giving permission for it to be used, the attorney doesn't need to register it, he just gets on and uses it. Until you give permission, he can't use it.

    Then, when you lose (or are about to lose) your mental capacity, he should register it, which will entail you and your nearest relatives being notified of the proposal to register it, and will give time for any objections.

    It's important to avoid any confusion (tho I'm not suggesting there is any in your case) between USING the power with the knowledge and permission of the donor and REGISTERING the power for use after the donor has lost mental capacity. The latter may take place many years after the former, or never at all.
  • royeee
    royeee Posts: 126 Forumite
    To clarify my previous question about doing the EPA after October 1st and backdating it, I wasn't suggesting that I could do this or risk this I was just curious that with the change from EPA to LPA on and after October 1st how it is going to be validated that it was actually done before the deadline. It seems that to ensure no question of its validity is to keep the original copy of EPA with my solicitor who holds my will. I wonder how much they'll charge for that on the basis of me doing the EPA myself.
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