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power of attorney

What is an Enduring Power of Attorney (“EPA”)?

An EPA is an instrument that could be made before 1st October 2007. It enables a person (“the Donor”) to appoint an Attorney or Attorneys to act on his or her behalf and make decisions in relation to his/her property and financial affairs.

What is a Lasting Power of Attorney (“LPA”)?

LPA’s were introduced by the Mental Capacity Act 2005. They replaced EPA’s and have been in force since 1st October 2007. EPA’s made before that date are still valid.

There are two types of LPA, a property and financial affairs LPA (“LPA PA”) and a health and welfare LPA (“LPA HW”). It is possible for someone to make just one or both types.  

The LPA PA enables the attorney to make decisions in relation to the Donor’s property and financial affairs, like its predecessor the EPA. The LPA HW, on the other hand, enables the Attorney to make decisions about day to day welfare issues, and about medical treatment.

What is Registration?

If the Donor loses mental capacity the Attorney is under a duty to register the EPA with the Office of the Public Guardian (“the OPG”).

As a part of the process, certain people should be notified of the situation, by the Attorney and the OPG and they will be entitled to lodge any objection they have to the application.

The idea is that those who are notified will bring to the attention of the OPG any issues which suggest that the Attorney is not, or is no longer, an appropriate person to make decisions on behalf of the Donor.

The notification from the OPG may be the first thing that a friend or relative hears about the EPA or LPA. This can, of course, lead to some concern.

Why Object?

Those who receive notification are the last line of defence to protect the Donor from an inappropriate Attorney. If you have received a notification and are concerned about the EPA or LPA you should seek immediate legal advice. You only have a limited time to register your objection. 

It is not appropriate to object just because you do not like the Attorney. Rather, an objection should only be advanced if your suspicions/concerns fall into one of the following:

1.    You think that the EPA or LPA is not valid - i.e. the Donor did not have mental capacity at the time the document was signed, or, you think the document is a forgery.

2.    You think that the EPA or LPA was revoked by the Donor before he/she lost capacity. 

3.    You suspect that fraud or undue pressure was used to induce the Donor to make the EPA or LPA.

4.    You think that there are compelling other reasons why the Attorney should not make decisions for the Donor. I.e. the Attorney has been declared bankrupt or convicted of a criminal offence.

What if the EPA/LPA is Already Registered?

It is possible to make an application for the cancellation of a registered EPA or LPA in certain circumstances, particularly if you think:

1.    Fraud or undue pressure was used to induce the Donor to create the EPA or LPA.

2.    The Attorney is unsuitable i.e. due to bankruptcy, criminal convictions, dishonesty, a conflict of interest with the Donor.

What Else Can Be Done?

The OPG has a Safeguarding Unit and if you have some suspicion, but not enough to merit making a formal application to revoke an LPA or EPA, you can make a report to the Safeguarding team and they will then likely investigate the Attorney and try and establish whether he or she is appropriate for the role, and acting in the best interests of the Donor.

If you become aware that a friend or relative is being financially or in any other way abused by their Attorney, you should contact us and we will help you navigate the complex legal process.  

Call Howells Solicitors today on 0808 178 2773.

by Tristan Lewis

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