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Discussion in 'Legal and financial issues' started by snowtree, Jul 25, 2007.
could someone please explain to me why this is so important and what it means if you dont have one!!
A Power of Attorney (POA) is a document that allows someone to sign on your behalf to deal with your financial affairs. Most ordinary POA's are automatically revoked if the person who executed the POA becomes mentally incapable.
An Enduring Power of Attorney (EPA) is a special type of POA which continues (or 'endures') even if the person becomes mentally incapable.
An EPA is most important where a person has assets in their sole name e.g. bank accounts, their property, stocks and shares and so on, but everyone should make an EPA now, particularly as the rules are about to change in October when the EPA will be replaced with a Lasting Power of Attorney (LPA) which looks like it will be more complicated and therefore more expensive.
If you haven't done an EPA or LPA and you become mentally incapable of dealing with your affairs, someone will need to apply to the Court of Protection to be appointed as your 'Receiver'. This is a much more complicated and expensive procedure.
Have a look at the Public Guardianship web site which explains the EPA, the LPA and Receivers.
www.guardianship.gov.uk and click on 'services we provide'
An EPA becmes important when your relative is no longer mentally capable of handling or managing their financial affairs. If they have signed an EPA while of sound mind, their nominated attorney/s can then take over the running of their finances by accessing bank accounts, even selling their house, once the EPA has been registered with the Court of Protection. At all times, of course, the attorney has to act in the best interests of the relative. If an EPA has not been signed, once the person becomes mentally incapable, the only way their finances can be managed, unless they have joint accounts with someone else, is by applying to the special court of guardianship, a very time consuming process. This can be a big issue if , for example, you need to access money quickly to pay bills, or need to sell the relative's house. There is plenty if useful info on AS fact sheets, also at Court of Protection website. There are major changes to the EPA situation in, I think, October, so you really need to get up to date information about the new process.
Definitely worth getting this done as soon as possible, if the person understands what is involved and is happy to go ahead. I would not delay as this illness sometimes progresses very quickly and then it can be too late.
my dad is the partner in our family business, the director of a ltd company and the owner of stocks and shares.....my mum reckons because she is his wife she can sign for him...i dont think so whats your opinion?
I'm thinking you need more specialised advice than the members of TP can give. It may depend on how the company is set up for instance. Is your mum a partner?
If not, i would not expect her to be able to act in place of your dad.
What I'd suggest in the first instance is that you put some questions to the Alzheimer's Society Help Line.
I would not expect them to be able to answer anything other than questions about dementia, and EPAs etc - not company law etc.
Im afraid the simple answer is no she can't, either as a partner, director or shareholder. Your dad needs to do an EPA now. As far as being a director and partner is concerned you need to get advice as an EPA may not solve the problem.
If the business is a partnership, I wouldn't imagine that anyone can deal with the affairs other than the partners. If it is a Limited Company (which is a totally different body), there may be some means by which other shareholders or directors can deal with company affairs, but not likely to deal with the personal affairs of shareholders/directors - in fact, probably not. The individual person is probably subject to the general rules of powers of attorney even in regard to the company affairs.
I really can't imagine any situation where your mum could take over dad's business affairs or give any authority there.
I think you should seek professional legal advice. If your dad is a director of a limited company, maybe Companies House could advise. If he is a partner, there is less formal advice available, maybe the Accountants of the partnership could direct you to the right place.
I really would suggest professional advice, rather than relying on heresay - and that includes advice on this website, we are not financial experts in this field.
I agree with Bruce,please contact the AS helpline.
Although I have an EPA and have had advice from our financial advisor, I could not atempt to answer your query,for expert advice contact the experts.
after running a ltd company for 10 years and having a pretty good understanding of EPAs I would recommend seeing an accountant and solicitor. The two areas are complex enough on their own, but mix them together!!!
My guess (and this is only a guess) is that you will need a trustee as well as an attorney to overlook financial affairs if a limited company or parnership is involved. This will probably be the accountant or close family friend - only a guess though.
I don't think merely being someone's spouse gives you the right to "sign for them". For example, if your dad has a bank account in his name only, your mum would not have any right to operate it, merely because she is his wife. That could only happen if the account was a joint one between them, or if his wife was registred attorney.
It sounds as though the situation needs some legal advice as it is more complicated than usual.
As has been said, to create an EPA, you must be "competent", that is, understand what you are signing and what it does. Hence EPA's are usually created ahead of time, against a need that may or may not arise. An EPA can be registred right away, but it can also contain clauses that mean it may only be used when the donor loses competence.
If someone is already not competent, they cannot create an EPA. In that case, you need to go through the Court of Protection, which is more costly and complicated, and it would be the Court who decides who to grant the powers.