Using/registering and Enduring Power of Attorney

[Wondergirly]

My parents and I completed EPA forms and signed them in March 2007, (probably following advice from the previous incarnation of this board).

They both made me the sole attorney in relation to all their property and affairs.

It is becoming clear that mum is likely to be diagnosed with some form of dementia, and given she controls all the finances at the moment, then we are getting to the point where perhaps Something must be Done.
She frequently locks herself out of online banking and has to go into the branch to get it sorted out for instance, and is generally just not as on top of things as she always has been. This would not be a major issue apart from the fact that dad cannot really take over the reins as he has his own issues. He is perfectly capable of looking after himself and mum but internet banking would be beyond him.

My major concern is that she is probably a sitting duck for some form of financial fraud.

So, to my questions:
Do I need to register these EPAs before I can begin to act for mum or dad? My initial research seems to suggest their banks should just need to see them but I am not sure.
I have since got married and changed my name, the EPAs are in my old name. Will this cause any issues?
Do I need mum's agreement to do anything? She is fairly sensible for most of the time, but can be very odd about finances.
Should I be considering getting the new Health and Welfare LPA for them both?

Any other advice around this would be most welcome. To complicate matters, I live a good few hours away but my younger brother is nearby.

TIA

Wondergirly

[stewamax]

They both made me the sole attorney in relation to all their property and affairs.

And if something happens to you?? Although your EPA was signed before the cutoff date of October 2007 and can still be registered, it may be worth checking the new LPA process (which - bar the signatures - can very easily be done online; see the official Office of the Public Guardian website and not one of the more costly 'we will do it for you' intermediaries) which separates authority over financial matters and authority over health treatment.
And to my opening point, the LPA also allows one or more reserve attorneys who can take over if the original attorney is for whatever reason unable to act.
This assumes of course that your parents are still mentally capable of authorising LPAs.

[CryptoPlankton]

You can use the EPAs without registering them if you have your parents' permission. However, I would strongly recommend registering your mother's asap as, in my experience, it will make it much easier to get the cooperation of any institutions you have to deal with. You should find all you need to know on this government site:

https://www.gov.uk/enduring-power-attorney-duties/register-an-enduring-power-of-attorney

(Sorry, link doesn't work, fighting with phone...)

[Lootman]

You can use the EPAs without registering them if you have your parents' permission. However, I would strongly recommend registering your mother's asap as, in my experience, it will make it much easier to get the cooperation of any institutions you have to deal with.

I was in the same situation as the OP with respect to my mother, with an EPA that predated the 2007 change. It was never registered and I had no problem using it with my mother's bank, nor to redirect my mother's state pension.

All I did was present the document, and the doors all opened.

I did need something extra to sell her house, but that went through as well.

[CryptoPlankton]

You can use the EPAs without registering them if you have your parents' permission. However, I would strongly recommend registering your mother's asap as, in my experience, it will make it much easier to get the cooperation of any institutions you have to deal with.

I was in the same situation as the OP with respect to my mother, with an EPA that predated the 2007 change.

As was I (father too).

It was never registered and I had no problem using it with my mother's bank, nor to redirect my mother's state pension.

All I did was present the document, and the doors all opened.

I did need something extra to sell her house, but that went through as well.

Good for you, that certainly wasn't my experience - I assume you dealt with a completely different universe of institutions to me. And presumably your mother never lost mental capacity.

I found that my parents had to give their consent (often in person) to banks etc each time I wanted to use their EPAs with someone new. Registering them (which, in any case, you were required to do at the first sign of lost capacity) saved time and effort for my parents, the institutions and myself.

As the OP believes her mother may be losing mental capacity, I believe she should register the EPA sooner rather than later (I was fortunate to have my parents' blessing, which made it less stressful) both because it is what she is supposed to do and also to avoid the chance of any inconvenient hold ups down the line. When her mother cannot consent, most institutions will demand to see a registered EPA (or certified copy) - in my world anyway.

Of course, you are at liberty to suggest otherwise, but I really don't believe that would be good advice...

[Clitheroekid]

Do I need to register these EPAs before I can begin to act for mum or dad? My initial research seems to suggest their banks should just need to see them but I am not sure.

You have to think very carefully before registering an EPA. You can only do so if the donor has lost or is losing mental capacity, and what many lay people fail to realise is that once an EPA is registered it means the donor can no longer deal with their own financial affairs.

This is because registering an EPA is an effective declaration that the donor has lost mental capacity, so that all dealings after registration must be carried out by the attorney.

This is a very big step to take, and requires a lot more careful consideration than it often receives.

Registration is also a much more formal procedure than it is with an LPA, and more likely to cause disputes. This is because you have to give a formal written notice of your intention to register not only to your mother but also to various relatives. This can cause serious problems if one of the relatives disagrees that your mother is losing / has lost capacity.

I have since got married and changed my name, the EPAs are in my old name. Will this cause any issues?

No - just have a copy of the marriage certificate available to prove the link.

Do I need mum's agreement to do anything? She is fairly sensible for most of the time, but can be very odd about finances.

See above - unfortunately, once the EPA is registered you cannot technically consult your mother at all, as she has by definition lost capacity.

Should I be considering getting the new Health and Welfare LPA for them both?

The main point the H&W LPA covers is the right for the attorney to refuse medical treatment on behalf of the donor. It will also only operate if the donor has lost capacity.

Far more useful, to my mind, and the only one that the large majority of my own clients take out, is the Property and Financial Affairs LPA. You can, of course, have both, but if it's a choice the PFA one is the one to go for, and it's the natural successor to the EPA.

Any other advice around this would be most welcome. To complicate matters, I live a good few hours away but my younger brother is nearby.

My own strong advice would be to get PFA LPA's done for both your parents, as they can be used whether or not they lose capacity.

Because of the distance that you are from your parents It would also be sensible to appoint more than one attorney, your brother being the obvious choice. If so, make sure you can act on a joint and several basis - i.e. that each of you can act independently, without the agreement of the other. However, your parents may want you to act jointly with regard to major decisions, for example the sale of their house.

[CryptoPlankton]

Please follow CK's advice. I was in the unusual position of having two parents with dementia and no close relatives to object. The EPAs were perfectly adequate for our needs as a close knit little family (and relatively cheap!), but there are clearly advantages to going down the LPA route.

Good luck with it all.

[Lootman]

It was never registered and I had no problem using it with my mother's bank, nor to redirect my mother's state pension. All I did was present the document, and the doors all opened.

Good for you, that certainly wasn't my experience - I assume you dealt with a completely different universe of institutions to me. And presumably your mother never lost mental capacity.

When I was executing my power under my mother's EPA I was never asked if there was any loss of capacity. Since it was not in my family's interest to volunteer that information, I did not. So the fact that capacity was starting to be lost had no effect.

According to what CK said the very act of registering it would declare that loss of capacity, and that reduces your options for acting.

To my mind the rules around this are silly. My mother's EPA was taken out in 1990, but as long as she was fully capable there was no need for me to act. It was only when capacity started to go that I needed to make decisions for her, and that is exactly when the EPA can no longer be freely used! That is a ridiculous situation, and the obvious and sensible response is to keep quiet about the capacity loss until all monies can be transferred to your own account. Then you can act freely anyway.

The entire point of any power of attorney is to use it when the person is not capable, not when they are!

[CryptoPlankton]

It was never registered and I had no problem using it with my mother's bank, nor to redirect my mother's state pension. All I did was present the document, and the doors all opened.

Good for you, that certainly wasn't my experience - I assume you dealt with a completely different universe of institutions to me. And presumably your mother never lost mental capacity.

When I was executing my power under my mother's EPA I was never asked if there was any loss of capacity. Since it was not in my family's interest to volunteer that information, I did not. So the fact that capacity was starting to be lost had no effect.

According to what CK said the very act of registering it would declare that loss of capacity, and that reduces your options for acting.

To my mind the rules around this are silly. My mother's EPA was taken out in 1990, but as long as she was fully capable there was no need for me to act. It was only when capacity started to go that I needed to make decisions for her, and that is exactly when the EPA can no longer be freely used! That is a ridiculous situation, and the obvious and sensible response is to keep quiet about the capacity loss until all monies can be transferred to your own account. Then you can act freely anyway.

The entire point of any power of attorney is to use it when the person is not capable, not when they are!

So what is your advice to the OP?

[Lootman]

So what is your advice to the OP?

1) Do not register the EPA
2) Present the EPA at the bank. Assuming it is accepted, move all monies to the OP's own account. If there are pensions or other forms of income, get them re-routed to the OP's account also.
3) Say nothing about any dementia

One thing I discovered is that an attorney cannot sell a property with just an EPA. For that I did have to get my mother to sign a special limited power of attorney, granting that power to our solicitor so he could convey the property. I could do everything else in respect of the sale, however, such as list it with a agent, reject or accept offers etc.

[CryptoPlankton]

So what is your advice to the OP?

1) Do not register the EPA
2) Present the EPA at the bank. Assuming it is accepted, move all monies to the OP's own account. If there are pensions or other forms of income, get them re-routed to the OP's account also.
3) Say nothing about any dementia

Okay then...

[production100]

One thing I discovered is that an attorney cannot sell a property with just an EPA

If the EPA is registered he can.


Chris

[Clitheroekid]

So what is your advice to the OP?

1) Do not register the EPA
2) Present the EPA at the bank. Assuming it is accepted, move all monies to the OP's own account. If there are pensions or other forms of income, get them re-routed to the OP's account also.
3) Say nothing about any dementia

One thing I discovered is that an attorney cannot sell a property with just an EPA. For that I did have to get my mother to sign a special limited power of attorney, granting that power to our solicitor so he could convey the property. I could do everything else in respect of the sale, however, such as list it with a agent, reject or accept offers etc.

If the OP's mum has actually lost capacity (and it's by no means clear whether or not she has) then what you're advocating is illegal.

If she doesn't have capacity then the EPA must be registered and cannot legally be used until it is registered.

Consequently, to use the EPA in those circumstances to empty the mum's bank account and divert her income to the OP would also be illegal. Whilst it would not amount to theft, and may not be a criminal offence it's a blatant breach of the law.

I realise from earlier posts relating to probate that you tend to view the law in these situations as something to be bent to suit your convenience, but this isn't a course of action that can properly be recommended to people who do want to comply with the law. Whilst I accept that the situation that arises after registering an EPA is far from ideal it would be far better for the mum to make an LPA rather than the OP breaking the law.

[Lootman]

So what is your advice to the OP?

1) Do not register the EPA
2) Present the EPA at the bank. Assuming it is accepted, move all monies to the OP's own account. If there are pensions or other forms of income, get them re-routed to the OP's account also.
3) Say nothing about any dementia

One thing I discovered is that an attorney cannot sell a property with just an EPA. For that I did have to get my mother to sign a special limited power of attorney, granting that power to our solicitor so he could convey the property. I could do everything else in respect of the sale, however, such as list it with a agent, reject or accept offers etc.

If the OP's mum has actually lost capacity (and it's by no means clear whether or not she has) then what you're advocating is illegal. If she doesn't have capacity then the EPA must be registered and cannot legally be used until it is registered.

Consequently, to use the EPA in those circumstances to empty the mum's bank account and divert her income to the OP would also be illegal. Whilst it would not amount to theft, and may not be a criminal offence it's a blatant breach of the law.

I realise from earlier posts relating to probate that you tend to view the law in these situations as something to be bent to suit your convenience, but this isn't a course of action that can properly be recommended to people who do want to comply with the law. Whilst I accept that the situation that arises after registering an EPA is far from ideal it would be far better for the mum to make an LPA rather than the OP breaking the law.

Disagree, respectfully, I understand why you give that advice. As a lawyer you are a de facto officer of the court and your first loyalty is to the court, your profession and your license to practice. Your clients' interests come second. I feel sure that in your situation I would say the same thing. But I am not, which gives me more latitude to give advice. Surely part of the value of this board is that advice not be constrained by parochial and professional restrictions. Technicalities are not 100% of prudent advice.

This is clearly a ridiculous situation. If the parent is competent then there is no need to invoke the EPA. And if the parent is not competent then, technically, the EPA cannot be used. In effect, the EPA is useless which just leaves the question of what a person does in that situation as a practical matter?

When I was in that situation I was in no doubt. My family comes above technicalities. If the EPA can be used to divert assets to where they can best be used to help the parent than that is what must be done. And even you admit that it is not a crime, so what is the worst that can happen? As long as you use an EPA for the sole benefit of the parent then there is not a court or jury in the land that would punish you for that. Moreover in your previous post you advocated being "careful" about disclosing incapacity, which is basically all I am saying.

Your reference to my attitudes towards probate is not relevant here since the parent here is not dead. That said, if the OP is also the sole executor and beneficiary of the will then probate can most likely be avoided if the OP uses a EPA to move the assets to himself. IHT is another matter but, that aside, I genuinely cannot see any issue with doing that absent technicalities. The common view that the law is an ass is not always accurate, but in this area it gets pretty close.

[CryptoPlankton]

This is clearly a ridiculous situation. If the parent is competent then there is no need to invoke the EPA. And if the parent is not competent then, technically, the EPA cannot be used. In effect, the EPA is useless which just leaves the question of what a person does in that situation as a practical matter?

.

They simply register the EPA and are thereby enabled to manage their parent's affairs perfectly satisfactorily - both honestly and within the law! Nothing useless or ridiculous about it in my experience - in fact, I don't know what I would have done without it. (But this is adding nothing of benefit to the OP so I'll bow out and leave you to it.)

[Lootman]

This is clearly a ridiculous situation. If the parent is competent then there is no need to invoke the EPA. And if the parent is not competent then, technically, the EPA cannot be used. In effect, the EPA is useless which just leaves the question of what a person does in that situation as a practical matter?

They simply register the EPA and are thereby enabled to manage their parent's affairs perfectly satisfactorily - both honestly and within the law! Nothing useless or ridiculous about it in my experience - in fact, I don't know what I would have done without it. (But this is adding nothing of benefit to the OP so I'll bow out and leave you to it.)

CK already described exactly why that is a problem, and I can do no better than to quote him:

You have to think very carefully before registering an EPA. You can only do so if the donor has lost or is losing mental capacity, and what many lay people fail to realise is that once an EPA is registered it means the donor can no longer deal with their own financial affairs.

This is because registering an EPA is an effective declaration that the donor has lost mental capacity, so that all dealings after registration must be carried out by the attorney.

This is a very big step to take, and requires a lot more careful consideration than it often receives.

Registration is also a much more formal procedure than it is with an LPA, and more likely to cause disputes. This is because you have to give a formal written notice of your intention to register not only to your mother but also to various relatives. This can cause serious problems if one of the relatives disagrees that your mother is losing/ has lost capacity.

If you can the EPA accepted at face value, then that is a no brainer. You should at least try that first. It worked perfectly for me.

[Wondergirly]

Thanks all for your very useful input.

After discussion with my brother, we are going to set up LPAs for both parents. I'll let you know how we get on.

W

[melonfool]

This is clearly a ridiculous situation. If the parent is competent then there is no need to invoke the EPA. And if the parent is not competent then, technically, the EPA cannot be used. In effect, the EPA is useless which just leaves the question of what a person does in that situation as a practical matter?

I can think of many many situations where a competent individual may still want someone else to act for them. My parents are both competent in terms of mental capacity, but they are old. They have asked me to be POA (as they call it) and they want me to be able to do simple tasks for them which they find onerous due to either their location, mobility or simple age.

It's not come up yet re finances but I have to give my mother a lot of help with things like computers and phones, so I speak to the providers for her, most are fine with that. She *could* do it, she's not lost her mental ability, but it's just a bit beyond her in terms of the technical stuff.

Re finances, recently my dad had an operation on his hand which meant he couldn't drive for 4 weeks, mum stopped driving years ago due to a bad accident, they live at the edge of a small town and while dad can walk into town, mum can't due to COPD, and dad can't carry much with his one remaining hand only.....so, they can't really easily get their banking and stuff done. They have needed help with that. But they are not incompetent.

Plus, the EPA can be used for someone who has lost mental capacity once it is registered, so it just needs to be registered at that point.

Mel

[Infrasonic]

My sister and I run our mum's affairs under a registered EPA, I only recently became active as my sister now has cancer, so I'm taking over and had to validate my ID over the last two weeks.

For bank accounts as my mothers bank is the same bank as ours so we have it so that her accounts appear as part of our online accounts view. No separate log ins required.
I've got a debit card for her current account on the way.

I just presented the original EPA paperwork and my photo drivers licence in branch early last week, a walk in sit down desk appointment, and the accounts went live yesterday for me.

Solicitors, carehomes and EA's are the same, photo ID, original EPA paperwork, job done.
IME all very painless and a common everyday procedure for all the third parties these days.

[Lootman]

My sister and I run our mum's affairs under a registered EPA . . I just presented the original EPA paperwork and my photo drivers licence in branch early last week, a walk in sit down desk appointment, and the accounts went live yesterday for me.

Solicitors, carehomes and EA's are the same, photo ID, original EPA paperwork, job done. IME all very painless and a common everyday procedure for all the third parties these days.

Yes, and as I mentioned earlier I also had no problems at all using my mother's EPA. And it was not registered so that's not a factor either.

As long as you have the EPA, some ID, and say the right things, it should be straightforward.