Enduring Powers
of Attorney

No. There are Powers of Attorney and Enduring Powers of Attorney and they are very different to one another.

An Enduring Power of Attorney (EPA) is a document signed by a person (the Donor), at a time when the donor has capacity, which comes into effect if and only if the Donor becomes or starts to become incapable of looking after their own affairs.

In the EPA the Donor will appoint one or more people to act as his/her Attorney or Attorneys.

No the Donor is entitled to appoint anyone they wish to be their Attorney.

No, but it is extremely important to appoint a person or persons who are trustworthy and will act in accordance with the Donor’s wishes and will fully account for the Donor’s property.

The Donor must inform two people (who are called Notice Parties) that they have signed an EPA and those two people must be their closest relatives or their next closest relatives if their closest relatives have been appointed as their Attorney or Attorneys.

Yes the Notice Parties are informed if and when the EPA is being registered or bought into effect. They then have the opportunity to object on several grounds to its registration, amongst them, the fact that the Donor is not unable to look after their own affairs.

That depends on EPA. The Donor can appoint his or her Attorneys to have charge of just his/her personal care decisions or financial decisions or both personal care decisions and financial decisions. It is also possible for a Donor to appoint one Attorney for personal care decisions and another for financial decisions.

Personal care decisions include decisions such as where the Donor should live, with whom they should live, decision with access to social services, housing and other benefits but do not include the making of any health care decisions yet.  However, there is a proposal to introduce legislation that will enable a Donor to appoint an attorney for the purpose of making health care decisions.

A person may be made a Ward of Court so that the Court will make or direct who should make any decisions not covered by an EPA.

A person may be made a Ward of Court so that the Court will make or direct who should make any decisions not covered by an EPA.

The Court may make a once-off decision in relation to a specific health care issue or direct that a person be made a Ward of Court to enable such decisions to be made.

A Doctor’s certificate is necessary to confirm the fact that the Donor is or is becoming incapable of looking after their own affairs. A set procedure then has to be followed. Certain documents have to be served on the Notice Parties, the Donor and the Wards of Court Office and five weeks later further documents must be signed by the Attorney or Attorneys and served again before registration is affected by lodging all of the documentation in the Wards of Court Office. It is within the five week period that the Notice Parties (or any other party who becomes aware of the intended registration of the EPA can object to it.

Upon completion of the registration process the Wards of Court Office issue a Certificate of Registration which bears the Wards of Court stamp.

You will need to see a copy of the document signed by the Donor and the Attorney or Attorneys to ascertain for what purpose the Attorney has been appointed.

No the registration of the EPA simply gives the Attorney or Attorneys power to act as agent for the Donor doing what the Donor might be expected to have done for themselves. All of the assets of the Donor remain in the Donor’s name but the people with the power to now deal with them are the Attorney or Attorneys named in the EPA. The Attorneys are also in a fiduciary position that means that they are regarded under law as Trustees for the Donor.

The Attorney or Attorneys use the Donor’s funds or property for the benefit of the Donor.

Yes, provided there are no conditions or restrictions on doing so contained in the EPA, the Attorney or Attorneys can use the Donor’s property to benefit others who are economically dependent on the Donor such as a dependent spouse or a dependent child.

No other person whether related to the Donor or otherwise need be consulted by the Attorneys unless the Donor  has specifically stated otherwise in the EPA.

No, only the Attorney/Attorneys have power to make decisions.

No unless there is a specific power in the EPA authorising them to do so. Even if that power is there they can only do so on birthdays or anniversaries to people the Donor themselves may have remembered and only for an amount which is reasonable given the amount of the Donor’s property.

The Attorney/Attorneys are obliged to keep full accounts which can be inspected by the Wards of Court Office on behalf of the High Court.

Yes. The High Court has power to hold an Attorney or Attornies personally responsible for the misuse of the Donor’s property.

The document (EPA) should provide, where there is more than one Attorney, whether they have all to act together (jointly) or whether they can act and make decisions separately from one another (severally). In other words if the EPA provides that they can act jointly and severally then a decision in relation to the Donor or his/her property can be taken by just one of them on their own without consultation with the other or others. However please see the next question.

Each Attorney has the same responsibility for the Donor and  for the Donor’s property and affairs and  they are each therefore  accountable to the High Court. Each should therefore ensure that they know whether or not decisions are been made without reference to them and what those decisions are.

Yes. The High Court has jurisdiction to remove an Attorney.

A person who suspects an abuse by the Attorney or Attorneys of the Donor’s property and/or  personal care can complain to the Wards of Court Office or, if they are aware of the identity of the solicitor who prepared the EPA on behalf of that Donor, to that solicitor.

Yes. A Donor can revoke an EPA which they have previously signed if it has not yet come into force that is before it is registered.  Once an EPA has been registered, the registration can only be cancelled by the High Court.

Yes, if the Court decides not to register an EPA, or decides to cancel an EPA, then in those circumstances the Donor of the EPA can be taken into Wardship.

The function of an EPA is solely to  act as agent for the Donor.  Once a Donor dies the agency arrangement is at an end and the entitlement of the Attorney or  Attorneys to deal with the Donor’s property immediately ceases.

If the Donor had made a Will, the Executors of the Will. If the Donor had not made a Will one or more of their closest relatives can apply to administer the estate.

Yes. The  Attorneys  are obliged to assist the Executors or Administrators of the estate by giving details of the assets, etc of the Donor at his/her date of death.