People often ask whether an estate will ‘go to Probate’, although many are unclear exactly what this means. A Grant of Probate (or Letters of Administration if there is no Will) authorises the Executor to administer the estate by collecting in...
Many of you will have been appointed as an Attorney in a Power of Attorney. A Power of Attorney is a document which someone (the Donor) signs to say that if they cannot ever make decisions for themselves, they appoint one or more trusted people to make those decisions for them (the Attorneys).
Up until 30th September 2007 the Power of Attorney was called an Enduring Power of Attorney (EPA). It covered decisions relating to property and financial affairs. Any EPA signed on or before 30th September 2007 remains valid.
From 1st October 2007 the Powers of Attorney are called Lasting Powers of Attorney (LPA). There are now two types of LPA. The first covers property and financial matters. The second covers health and welfare issues.
Ideally everyone should have an EPA or LPA to cover property and financial affairs and also an LPA to cover health and welfare issues.
So when can an Attorney act under a Power of Attorney? That depends on the type of Power of Attorney.
1. If the Donor still has mental capacity to make his or her own decisions relating to property and financial affairs, he or she can ask the Attorney to deal with these matters using the EPA. A certified copy of the EPA can be handed to the Bank, other financial institution or solicitors acting in the sale of a property, for example. This can be very useful if the Donor is going away on holiday or is too physically frail to deal with these matters.
2. If the Donor is, or is becoming, mentally incapable of making decisions, the Attorney must register the EPA at the Office of the Public Guardian before the Attorney can use it. There is a set procedure for registering EPA's and we can help you with this if you would like us to.
1. Property & Financial Affairs. This LPA must be registered at the Office of the Public Guardian in order to be used by the Attorney. As registration takes approximately eight weeks to complete we recommend that registration takes place as soon as the LPA has been signed. Once registered, the Donor can ask the Attorney to act on his or her behalf even if the Donor still has capacity. If the Donor loses capacity the LPA is ready for use by the Attorney without delay.
2. Health & Welfare. Again, this must be registered at the Office of the Public Guardian in order to be used but unlike the Property & Financial Affairs LPA, the Health & Welfare LPA can only be used by the Attorney once the Donor has lost mental capacity to make his or her own health and welfare decisions.
We can help you set up Powers of Attorney and register them and supply a certified copy of a Power of Attorney. For further information please call Jenny Mayhew or any member of the Private Client team.