EPAs could be drawn up until 30th September 2007. When the Mental Capacity Act 2005 came into force, Lasting Powers of Attorney (LPAs) came into force. Any EPAs made before this change remain valid.
The main difference between an EPA and LPA is the registration process. An LPA cannot be used until it has been registered with the Office of the Public Guardian. An EPA can be used before registration and the attorney appointed by an EPA is only required to register the document once the person they act for has lost or is losing the mental capacity to manage their own finances.
The duties of these appointed attorneys to the person they act for are the same whether they are appointed by EPA or LPA. Nominated attorneys must act at all times in the best interests of the person that has nominated them. This will often be a tricky balancing act particularly when direct family is concerned.
An attorney acting for their cash-rich elderly parent may find it difficult to resist the temptation to use money to help themselves or their own children.
Attorneys have very limited powers to make gifts or loans from the funds they manage. Attorneys can only make modest seasonal gifts and they have no authority to loan funds. Attorneys can apply to the Court of Protection for the authority to make large gifts or for a statutory Will to be executed, but to attempt to do so without authority risks the attorney being removed from their role.
Misuse of funds is known as financial abuse and it is an issue of growing concern especially amongst professionals who work specifically with the elderly.
We understand that preparing these documents can be a complex and sometimes emotional procedure. We treat all our clients equally and every piece of documentation is a bespoke package to truly represent our client’s exact wishes.
The leading solicitor in this area is an accredited member of the organisation ‘Solicitors for the Elderly’ and our firm’s policy is to take considerable time and care so that the wishes of the elderly are respected. It is utmost in our mind that the writer knows exactly what they are asking their attorney to do and that the appointed attorney understands what they are agreeing to do.
We pride ourselves on spending detailed time looking into all the financial implications so that no mismanagement of funds is possible. We explain every aspect of the document comprehensively and handle the process from drafting to approval to registration.