THis is what she sent me , I cope paste it in to hear , and it seem to show it all
Information in England
8.34.4.50. Client needs someone to manage her/his financial affairs
Extent: EWNI
Table of contents
Flow chart: advising a client who needs someone to manage her/his financial affairs
Arrangements for benefits, state pension and tax credits
Other specific transactions
Granting a power of attorney
Who can be a donor or attorney
Can there be more than one attorney
Can the donor still act on her/his own behalf
Drawing up a power of attorney
How long does a power last
Responsibilities of the attorney
Mental incapacity of the donor
Different types of power of attorney
General power of attorney
Limited power of attorney
Trustee power of attorney
Enduring power of attorney
Court of Protection and Public Guardianship Office
When is it necessary to involve the Court or the Public Guardianship Office
Registering an enduring power of attorney
Objecting to an enduring power of attorney
Receivership under the Court of Protection
Directions of the Public Trustee
Fees
Further advice and assistance
Appendix: standard forms (in England and Wales only)
Standard form for third party mandate
Standard form for general power of attorney
Standard form for enduring power of attorney
________________________________________
In N. Ireland, references to the Court of Protection and the Public Guardianship Office mean the Office of Care and Protection. References to the receiver mean the controller. References to local authority mean Health and Social Services Board.
1
The flow chart in the paragraph below may be used to advise a client who needs someone to manage her/his financial affairs.
Flow chart: advising a client who needs someone to manage her/his financial affairs
2
Download this flowchart in a printable pdf format
3
There are a number of ways a client can arrange to have her/his financial affairs handled by someone else. Most can be arranged at any time if the client has the 'mental capacity' to manage her/his affairs but only an enduring power of attorney can continue if the client loses this capacity.
[top of page]
Arrangements for benefits, state pension and tax credits
4
A claimant who receives her/his benefit, state pension or tax credit by cashing a cheque and is temporarily unable to cash it, can fill in the back of the cheque to allow someone else, called an agent, to cash it. If a claimant needs someone to do this for her/him on a regular basis, s/he should contact the office which deals with her/his benefit payment.
5
A claimant who receives her/his benefit, state pension or tax credit by cashing a cheque may also be able to appoint another person, known as an appointee, to act on her/his behalf when dealing with any aspect of a benefit, state pension or tax credit claim. A client wishing to appoint an appointee should contact the office which deals with her/his claim.
More about making arrangements with an agent or appointee
5a
Benefits, state pension and tax credits are normally paid direct into a bank, building society or Post Office card account. A claimant in this situation may find that s/he cannot use an agent or appointee to collect her/his benefit, state pension or tax credit on her/his behalf. S/he should discuss her/his needs with the bank or building society responsible for her/his account and/or the relevant office responsible for her/his benefit, state pension or tax credit.
More about payment of benefit, state pension and tax credits into accounts
5b
A person with power of attorney for a claimant, or a receiver appointed by the Court of Protection can also deal with all aspects of the claimant's benefit, state pension or tax credit.
[top of page]
Other specific transactions
6
If the only power that a donor wants to give is the power to operate a bank account on her/his behalf, a letter to her/his bank may be sufficient but many banks have their own standard forms (form for third party mandate) for this purpose and the client should ask her/his bank for the appropriate form.
7
If the client needs someone to handle her/his financial affairs on a longer term or more wide ranging basis, s/he should probably consider granting a power of attorney. This can be limited (for specific activities only) or general (giving the attorney power to act on the client's behalf in all matters). If it is possible that the client might become mentally incapable of understanding her/his affairs, s/he should consider whether to grant an enduring power of attorney.
[top of page]
Granting a power of attorney
8
When a person makes a power of attorney, s/he appoints another person to act on her/his behalf. The person making the power is called the donor and the person appointed is called the donee or attorney.
9
Common examples of when a power of attorney might be necessary are where the donor is physically incapable of managing her/his affairs or is going abroad for a lengthy period. A power of attorney cannot be made by a person who is mentally incapable. If a client believes s/he might become mentally incapable or has been diagnosed as having a degenerative disease, such as Alzheimers, s/he can create an enduring power of attorney.
10
In practice, the reason for giving a power of attorney is to provide the attorney with a document legally proving her/his powers. This can then be used by the attorney as an authority to third parties with whom s/he has to deal, for example, banks, local authority departments, savings institutions. The document therefore remains in the custody of the attorney, although s/he could use a certified copy (which is certified as a copy by the donor or solicitor with the words 'I hereby certify that this is a true and complete copy of the original'). If there is more than one page, the following words should appear at the foot of each page of any copy: 'I hereby certify that this is a true and complete copy of the corresponding page of the original'.
Who can be a donor or attorney
11
In general, there are no specific restrictions as to who can be a donor or attorney. This means that if a person has the right and capacity to do something her/himself, s/he can also give someone power of attorney or become an attorney her/himself. A minor can give power of attorney, but the attorney will only be able to do those things on the minor's behalf which the minor could legally do her/himself. A minor who is considering granting power of attorney should be referred to a solicitor.
More about what a minor is legally able to do
More about what a minor is legally able to do in N. Ireland - 8.30.1.7. Young people: rights and responsibilities
Can there be more than one attorney
12
A donor can appoint two (or more) people as attorneys. If they are appointed joint attorneys, they must always all act together. This can therefore provide a useful safeguard against fraud or improper acts by one attorney. However, the power of attorney comes to an end if a joint attorney dies or becomes mentally incapable.
13
On the other hand, if two or more people are appointed as joint and several attorneys, they may either act together or individually, whatever happens to any of the other attorneys. The signature or action of one attorney is as valid as if s/he were the sole attorney.
Can the donor still act on her/his own behalf
14
The granting of a power of attorney does not deprive the donor of the power to act personally on his/her own behalf. For example, s/he can sign cheques concurrently with the attorney(s).
Drawing up a power of attorney
15
The power of attorney must be signed by the donor. The signature must be witnessed and attested by one other person. If the donor is physically incapable of signing the document, this can be done by another person in her/his presence, but that signature must be attested by two witnesses. Neither the attorney nor the donor's spouse or civil partner should act as a witness. Stamp duty does not have to be paid on power of attorney.
How long does a power last
16
A power of attorney can be expressly limited to a specified period (that is, it can be drawn up saying that it expires on a certain date). This may create problems, however, if certain transactions have not been completed by that date.
17
Alternatively, a power of attorney can be drawn up to expire when certain specific duties have been completed.
18
If neither of these time limits is written into the power, then it will remain valid until one of the following occurs:-
• it is expressly revoked by the donor, the attorney or a court order; or
• the death of either the donor or attorney; or
• usually, the bankruptcy of either the donor or attorney; or
• it is revoked by implication (usually, this means the mental incapacity of the donor).
19
Unless a power of attorney is specifically limited to a stated period of time, there is a general legal presumption that the authority is valid until the person with whom the attorney is dealing has notice that the power has terminated. This applies whether the termination occurs through revocation by the donor or attorney, incapacity of the donor or attorney, or by the death of one of them. However, special rules apply to trustee powers of attorney.
20
Provided neither the attorney nor any third party with whom s/he was dealing knew that the power of attorney had ended (for example, if the donor had died or revoked the power), any transaction carried out by the attorney would be considered valid.
How to revoke a power of attorney
21
The power may be revoked by either a donor or attorney at any time. This may be done verbally or in writing, but clearly is best done in writing and should be noted on the power itself. It may also be appropriate to inform anyone else concerned in dealing with the donor's affairs, for example, banks or savings institutions.
Responsibilities of the attorney
22
Anyone acting as an attorney is in a position of trust and can only do those acts which s/he is authorised to do and only by a particular method if such a method is stipulated. S/he cannot delegate any duties unless authorised to do so.
23
The attorney is required to do all of the following:-
• if paid, s/he is required to act reasonably; and
• if unpaid, s/he is required to act as if s/he were conducting her/his own affairs; and
• s/he must act in good faith, informing the donor of any conflicts of interest that may exist or may arise; and
• s/he must keep separate up-to-date accounts of the donor's affairs.
24
When the attorney is acting on the donor's behalf and has to sign any documents s/he should sign her/his usual signature and add, underneath the signature, 'attorney for ........ (donor's name)'.
Is the donor responsible for the attorney's acts
25
This will depend very much on the particular action and the extent of the attorney's authority to act on behalf of the donor. Generally, a donor is not responsible for crimes committed by the attorney within the scope of the authority, unless the donor's own acts supported the crime.
Complaints about the donor or attorney
26
Since the attorney has a responsibility to act with proper care, the donor (or her/his estate) can seek compensation if insufficient care has been taken of the donor's affairs by taking a civil action to sue for damages.
27
If a third party has a complaint against either the donor or the attorney s/he can take legal action for compensation in the same way, seeking damages for any losses suffered from the donor or attorney as appropriate.
Mental incapacity of the donor
28
A power of attorney can only be created by a person if s/he knows what s/he is doing and what its effect is. If a person is mentally incapable of handling her/his affairs, but still knows what s/he is doing, s/he can still create a power of attorney, but see paragraph 33.
[top of page]
Different types of power of attorney
29
There are four different types of power of attorney:-
• general power of attorney; or
• limited power of attorney; or
• trustee power of attorney; or
• enduring power of attorney.
General power of attorney
30
This gives the attorney a blanket authority to act on the donor's behalf. S/he can ask for any information s/he requires about the donor's affairs, for example, if the attorney has requested it to do so, a bank must inform the attorney when a cheque drawn by the donor is presented for payment. The attorney is authorised to sign most legal documents for the donor.
30a
A general power of attorney must be drawn up in a standard format. In England and Wales, there is a pre-printed form (CON36) available from legal stationers, although this form does not have to be used. A general power of attorney can be typed or wordprocessed, as long as the correct words are used. An example is in the Appendix.
31
In practice, because of its simplicity, a general power is often used even where a blanket authority is not required. Once it is drawn up correctly, the attorney has the power to do anything that can be done on someone else's behalf. There are only a very few things that a power of attorney cannot cover, for example :-
• an attorney cannot sign a will or codicil for the donor; and
• if the donor is an agent for someone else, this cannot be delegated; and
• the attorney cannot stand in for the donor as a witness or in any other capacity which requires the donor's personal specialised knowledge; and
• a third party cannot be compelled to enter into a contract with the attorney acting on behalf of the donor (for example, a life assurance company could insist on certain questions in a proposal form being answered by the donor her/himself, before allowing the proposal to go forward).
32
The disadvantage of granting a general power of attorney is the (almost) unlimited scope for action which it gives the attorney. There is always a possibility of irresponsible behaviour by the attorney, although this can be avoided by appointing two or more attorneys. The donor could sue the attorney or, if the attorney is a solicitor, make a complaint.
More about complaints about solicitors in England and Wales
More about complaints about solicitors in N. Ireland - 4.2.4.3. (NI) Complaints about solicitors
common law, the mental incapacity of a donor automatically revokes the authority of an attorney or agent.
Mental incapacity with no enduring power of attorney
33
Sometimes a donor makes a power of attorney whilst mentally capable of arranging her/his affairs and subsequently becomes unable to handle her/his affairs. At this stage, the original power of attorney will become automatically invalid. This is because under common law, the mental incapacity of a donor automatically revokes the authority of an attorney or agent.
34
In practice, many attorneys continue to handle their donors' affairs even while their powers of attorney are invalid because of mental incapacity. An agreement made with a third party will still be valid, provided the third party did not know of the donor's incapacity. It is not, however, advisable to deal with the donor's affairs in this way, as the attorney has no proper legal authority to act and s/he may, in some circumstances, be held personally accountable for these dealings. An attorney who has been handling the affairs of someone who is mentally incapable should apply to the Court of Protection to have a receiver appointed.
35
An attorney who continues to act with an invalid power of attorney is answerable to the donor (or her/his executors) for any losses. S/he could also have the power of attorney challenged in the county court or the High Court (depending on the sums of money involved).
Limited power of attorney
36
A limited power of attorney gives the attorney limited powers to carry out the particular acts specifically authorised in the document, for example, to buy and sell property, change investments or enter into a contract.
37
It is much more difficult to draw up a limited power of attorney than a general one, as it must be drafted in very precise terms. If there is any ambiguity as to whether a particular power has been delegated, a court will tend to rule that it has not. Because of this, the attorney may refuse to act on the donor's behalf even though the donor would have wished her/him to. Similarly, the third party with whom the attorney is dealing may refuse to accept her/his authority.
38
There are standard phrases used in drawing up a limited power of attorney depending on the powers to be granted. These phrases are not included in this information document and the client should be advised to seek legal advice.
Trustee power of attorney
39
A trustee power of attorney is given by one or more of the joint owners of property or by a trustee of a will or trust, and should be drawn up by a solicitor. It cannot be granted for a period of more than twelve months.
Enduring power of attorney
40
If a person knows s/he is likely to become mentally unable to handle her/his affairs, s/he can appoint another person to look after her/his affairs. S/he can also do this if s/he knows s/he is mentally unable to handle her/his own affairs, providing s/he understands what s/he is doing. To appoint another person, s/he has to create a special type of power of attorney called an enduring power of attorney.
41
The person granting the enduring power of attorney must be able to understand the nature and effect of the power at the time s/he signs it. If there is any doubt about this, obtaining a medical report relating to the person granting the enduring power of attorney is advisable. The legal test to determine the nature and extent of the person's understanding is to question whether the donor is able to understand that:-
• (depending on the terms of the power) the attorney will be able to assume complete authority over the donor's affairs; and
• (depending on the terms of the power) the attorney will, in general, be able to do anything with the donor's property which the donor could have done; and
• the power will continue if the donor is, or becomes, mentally incapable, but that in that event, the power will be irrevocable without the confirmation of the Court of Protection.
42
When the donor starts to become mentally incapable of handling her/his affairs, in England and Wales the enduring power of attorney will have to be registered at the Court of Protection. In N. Ireland, an enduring power of attorney has to be lodged in the High Court via the Office of Care and Protection.
43
An enduring power of attorney may authorise a person either:-
• to act as attorney with general or limited powers and to continue to act as attorney when the donor becomes mentally incapacitated; or
• to act as attorney only when the donor becomes mentally incapacitated.
44
The wording of an enduring power of attorney is prescribed by regulation. There is a pre-printed form, available from legal stationers. In England and Wales, the form is also available from the Public Guardianship Office and can be downloaded from its website at
www.guardianship.gov.uk/formsdocuments/formsanddocuments.htm. Although this does not have to be used, any typed or wordprocessed version must use the exact words, including the explanatory information and margin notes. An incorrectly completed form will be invalid. For an example copy of the form, in England and Wales, see the Appendix.
44a
The Public Guardianship Office has a special helpline number for enquiries about enduring powers of attorney. The number is 0845 330 2963. Calls are charged at local rate. To obtain information about how to make an application for an enduring power of attorney, it is advisable to seek specialist legal advice.
[top of page]
Court of Protection and Public Guardianship Office
45
In England and Wales, the Court of Protection looks after the financial affairs and property of people who are mentally incapable of doing this for themselves. Although it is a court of law and part of the Supreme Court, it is not connected with any other court. Its main function is to appoint receivers who carry out the day to day management of the financial affairs of a person who is mentally incapable. It also adjudicates in disputes concerning the management of their financial affairs.
46-47
There are no paragraphs 46-47.
48
In England and Wales, the Public Guardianship Office (PGO) is responsible for the supervision of receivers appointed by the Court of Protection. The Public Trustee may be appointed by the Court as receiver in those matters where there is no one suitable or willing to act or where the Court requires an independent receiver. These duties are carried out in the Receivership Division of the PGO.
49
If the estate of the mentally incapable person is valued at less than £16,000, the Court can make a simplified order to deal with these assets without appointing a receiver.
50
In N. Ireland, responsibility for the management of the property and financial affairs of people who are mentally incapable of doing this for themselves, is vested in the High Court. The Office of Care and Protection (OCP) is the department of the Court in which administrative work relating to an incapacitated person's case is dealt with, under the supervision of the Master (Care and Protection). The Master is a judicial officer of the Court who is authorised to exercise any discretion, power or other function of the Court. The Master may also refer a question to a High Court judge for a decision to be made. The OCP is also responsible for registering enduring powers of attorney.
When is it necessary to involve the Court or the Public Guardianship Office
51
It will usually be necessary to involve the Court when something needs to be done to protect a person's assets or to enable the assets to be used for her/his benefit. This particularly applies where someone owns her/his home and is now in a nursing home or hospital. For example, if a person is unlikely to return home, her/his property may be deteriorating and its value diminishing. The vast majority of people under the jurisdiction of the Court are elderly people who have become progressively confused and less capable of dealing with their own financial affairs.
52
The Court and the PGO are increasingly involved in the management of the affairs of people who have been discharged from long stay hospitals into the community. Directions invariably have to be given by the Court in respect of savings that these people have built up during their stay in hospital.
Registering an enduring power of attorney
53
If the attorney has been using a valid enduring power of attorney, s/he can continue to use this if the donor becomes mentally incapable of managing her/his affairs, but s/he must first register the enduring power with the Court of Protection. The Court of Protection has the same address as the PGO. To register, the attorney must first send a notice on a form (obtainable from the PGO) to:-
• the donor personally; and
• at least three of the nearest relatives. The PGO may sometimes require the attorney to notify additional relatives or dispense with providing notice. The PGO will require the attorney to notify all relatives of the same type, for example, all brothers and sisters, if one relative of that type has been notified.
54
The attorney must notify the donor's three nearest relatives in the following order:-
• donor's spouse or civil partner
• donor's children (not including step-children)
• donor's parents
• donor's brothers, sisters, half-brothers and half-sisters
• widow, widower or surviving civil partner of donor's child
• donor's grandchildren
• children of donor's brothers and sisters, that is, nieces and nephews
• children of donor's half-brothers and half-sisters
• donor's uncles and aunts
• children of donor's uncles and aunts, that is, first cousins.
55
After the notice has been given, the attorney can apply to the Court of Protection for registration of the power on form EP2. There is a fee for registration, but this can be taken from the estate of the donor.
Objecting to an enduring power of attorney
56
A member of the donor's family may feel that the donor's affairs are being mismanaged or that, for another reason, the enduring power should not be registered, or, if it has been registered, that registration should be cancelled. If this is so, s/he can apply to the Court, which may cancel either the power of attorney or direct the attorney as to the management of the donor's affairs.
Receivership under the Court of Protection
57
A receiver is a person appointed by the Court to collect someone's income, pay her/his bills and administer her/his affairs in her/his best interests.
58
If a mentally incapacitated person has not granted an enduring power of attorney, the Court will appoint a receiver if the person has any capital assets or has income other than social security benefits. For example, s/he may have an occupational pension or have property which needs to be sold. If s/he has no capital assets and her/his only income is social security benefits, the Court would not necessarily need to become involved.
58a
In England and Wales, if a client has capital of less than £16,000 and there is a reasonable expectation that this will not increase substantially in the next few years, it may not be necessary for the Court to appoint a receiver and the case may be dealt with by the Public Trustee instead. In N. Ireland, it is possible to apply for a Short Procedure Order if the client has assets of £10,000 or less. This means that the appointed Controller only needs to attend the court initially. Each case will be dealt with on an individual basis and decided by the Master.
Who can apply to be a receiver
59
The application is normally made by the nearest relative. If s/he is unable or unwilling to act as a receiver, another relative, a friend, or some other person may make the application. If there is such a person willing to apply, it is not necessary to use a solicitor. The PGO will give help with applications. If a solicitor is used, the costs will usually be met from the incapacitated person's estate. If there is no friend or relative, or if there is disagreement in the family about applying, a solicitor, accountant or bank manager can apply. A local authority representative (but usually only where the person is resident in a local authority home), or one of the person's creditors, could also apply. If nobody is prepared to apply, the Court should be notified in writing. The Court may then appoint a public receiver or some other person or organisation.
Applying to be appointed as a receiver
60
To apply to be appointed as a receiver, a person should write explaining the situation and asking for an application pack. The addresses are:-
In England and Wales
The Public Guardianship Office
Archway Tower
2 Junction Road
London
N19 5SZ
Tel: 020 7664 7000
Tel: 0845 330 2900 (for general enquiries and/or application pack)
Fax: 020 7664 7705
E-mail:
custserv@guardianship.gov.uk
Website:
www.guardianship.gov.uk
In N. Ireland
Office of Care and Protection
The Royal Courts of Justice
PO Box 410
Chichester Street
Belfast
BT1 3JF
Tel: 028 9072 4732 or 028 9072 4733
Fax: 028 9032 2782
E-mail: officeofcare+protection@courtsni.gov.uk
61
The application pack consists of:-
• in England and Wales, three copies of a notification letter. These need to be completed to provide written notification of the proceedings to those relatives who are closer to the applicant than the client. In N. Ireland, there should be one copy of the application form instead; and
• a statement about the client's assets and income. This form asks questions about the person's money, property, liabilities and family and personal history. All financial matters relating to the person should be included; and
• a declaration to be completed by the proposed receiver; and
• in England and Wales, a receiver's account; and
• a medical certificate. This must be completed, signed and dated by the person's doctor. The certificate asks for a diagnosis of the person's condition and an explanation of why s/he cannot manage her/his own affairs. The doctor will probably charge a fee for completing the certificate, and this can subsequently be claimed from the person's assets.
61a
In England and Wales, the completed receiver's declaration and statement of client's assets and income should be sent to the PGO with the following:-
• a copy of the client's will (if held by the applicant); and
• any original Power of Attorney or Enduring Power of Attorney; and
• a covering letter, especially if there is a need for any matter to be dealt with urgently; and
• the commencement fee.
62
On receipt of the forms, the Court checks the information. If there are difficulties with the medical evidence, it may send a Lord Chancellor's Medical Visitor (in N. Ireland, a Lord Chief Justice's Visitor) to see the incapacitated person and make a report to the Court.
63
The Court then arranges for written notice to be given to the person by a doctor, nurse, solicitor or relative, giving the date of a hearing, usually a few weeks later. In rare situations, the Court may not do this if it considers that it would cause the person distress. If the person or someone acting on her/his behalf has any comments or representations to make, s/he must write to or telephone the Court within ten days of receiving the notification.
64
In England and Wales, it is not usual for anyone to attend the hearing, but the Court can ask for a solicitor to attend or (rarely) the applicant or anyone else involved. If the Court is satisfied with the evidence presented, it will appoint a receiver, usually the person's nearest relative. The Court will frequently require that a security be paid. This is usually done by an annual payment (from the incapacitated person's money) of a premium to an insurance company. If the Court does not agree that a receiver should be appointed, the applicant can appeal.
65
In N. Ireland, the applicant and her/his legal representative, if any, attend the Court for interview. However, if the incapacitated person lives at home, the interview is normally arranged to take place there.
66
In England, Wales and N. Ireland, if someone wishes to challenge the appointment of a particular person as a receiver, s/he may attend the hearing to put her/his representations to the Court. The Court will then take these into account when reaching its decision. If the complainant is dissatisfied with the subsequent decision, there is a right of appeal. Information about appealing is available from the Court office.
The receiver's duties
67
Once appointed, a receiver takes control of the person's financial affairs and property, and acts on her/his behalf. The receiver will be required to open a bank account in her/his own name as receiver of the incapacitated person. S/he must act within the powers given by the Court or the PGO. S/he will need the Court's permission before making any decision about the incapacitated person's capital. If a home or other property is to be sold, the PGO exercises a supervisory jurisdiction to ensure that it is being sold for a proper price and that any estate agent's commission is reasonable.
68
The receiver can be required to give security for her/his actions, either in the form of a fidelity guarantee bond or by lodging cash or investments with the Court. The amount of any security will be fixed at the hearing.
69
The receiver is usually required to present yearly accounts of the person's finances. A solicitor or accountant may be used, but this is not necessary. Full details of the duties of the receiver are given in a booklet issued by the PGO whenever an application form is requested.
70
Where it is reasonable and practical to do so, a receiver is required to consult with the mentally incapacitated person for whom s/he acts as receiver to ensure that any views the person has on how money is to be spent or otherwise dealt with, are taken into account. If there are major disagreements, the receiver is required to report the matter to the PGO and to tell the mentally incapacitated person that s/he may raise such matters with the PGO. The PGO or the Court will decide what course to follow.
71
In a case where an incapacitated person is able to deal with small amounts of money on a daily basis, the receiver can, with the permission of the PGO, open a bank account in the name of the incapacitated person so that s/he can operate the account personally. The receiver would, however, be responsible for keeping the use of the account under supervision.
72
Although the nearest relative is usually appointed as receiver, this may not always be in the person's best interests. For example, the receiver may stand to benefit by restricting the amount of money the person is allowed to spend, because s/he is going to inherit it.
73
On the other hand, a solicitor or other professional will probably charge a considerable sum for acting as receiver. Often, therefore, it is best to appoint the nearest relative if s/he has the necessary skills and knowledge to carry out a receiver's duties.
74
If someone wishes to challenge a receiver who has already been appointed, for example, if s/he feels the receiver is not managing the person's assets properly, s/he should write to the PGO with her/his views, and any evidence available. The PGO will refer the letter to the Court. The Court can either confirm or revoke the original appointment of the receiver. If the complainant is still dissatisfied, there is a right of appeal.
Fees for receivership
75
For an estate managed by a receiver appointed by the Court, there is an annual administration fee. There will also be a commencement fee, payable in the first year.
What happens to the receivership if the person recovers
76
If the person subsequently recovers and becomes able to manage her/his own affairs, s/he should apply to the Court, with medical evidence from a doctor, to resume her/his normal responsibilities. If the Court is not happy with the doctor's opinion, it may choose to send a Lord Chancellor's Medical Visitor (in N. Ireland, a Lord Chief Justice's Visitor) to see the person and report back to the Court. If the Court decides that the person is not able to manage her/his own affairs, the person can appeal.
Can a person with a receiver make a will
77
In certain circumstances, it may be possible for a person whose affairs are being dealt with by a receiver to make a will. The person may wish to do so, or there may be a change in her/his circumstances, for example, the death of her/his spouse or civil partner, which makes it necessary. If so, the receiver should tell the Court that the person wishes to make a will. The Court can then call for evidence from the person's doctor, or occasionally ask a Lord Chancellor's Medical Visitor (in N. Ireland, a Lord Chief Justice's Visitor) to advise if the person has the capacity to make a will (testamentary capacity). If the person is found to have the testamentary capacity, arrangements will be made for her/him to do so.
78
If, on the other hand, the Court decides that the person is not capable of making a will, it can make a statutory will on the person's behalf. This takes into account what the Court considers the person would have wanted if s/he were not mentally incapacitated.
What happens to the receivership when the incapacitated person dies
79
The death of the incapacitated person automatically terminates the receiver's power and the jurisdiction of the Court. The dead person's estate is dealt with as if s/he had not been mentally incapacitated. If s/he has made a will, her/his estate will be distributed according to the terms of the will. If there is no will, the estate will be dealt with under the laws of intestacy.
More about dealing with an estate after death
More about getting probate
Emergency applications
80
In a case of extreme urgency, the Court can appoint an interim receiver before the necessary medical evidence is available, provided the Court has reason to believe that the person concerned may be mentally incapable. The applicant should forward the application form with a certificate of family and property, and explain the need for urgency. It would be best to telephone the PGO first for advice, and to check whether an emergency application is appropriate.
Directions of the Public Trustee
81
In certain cases in England and Wales, usually where the person's assets are valued at less than £16,000, it may not be necessary for the Court to appoint a receiver. Such cases can usually be dealt with by making an application to the Public Trustee for directions that will allow for the limited assets to be dealt with. Applications can be made by completing forms CP1(PT), CP3(PT) and CP5(PT), which can be obtained free of charge from the PGO. In N. Ireland, it is possible to apply for a Short Procedure Order if the client has assets of £10,000 or less.
Fees
82
Certain fees are payable in respect of applications to the Court and administration by the PGO. Full details and the current rates of these fees are available from the PGO. The following is a brief outline of the fees:-
• Commencement Fee - payable when the appointment of a receiver is applied for
• Annual Administration Fee - payable each year and usually collected on the anniversary of the date of the order appointing a receiver
• Transaction Fee - payable on certain transactions which require authorisation by the Court, for example, the sale of property or the appointment of trustees.
82a
The PGO has the discretion to waive all or part of any fee where its payment would cause hardship to the client or her/his dependants, or where circumstances are otherwise exceptional. For example, a client on income support could suffer hardship if s/he had to pay such fees. A request should be made in writing and each case is treated on its merits.
Further advice and assistance
83
The PGO publishes a range of booklets dealing with all aspects of its work in the area of mental health. These include details of procedures and the duties of a receiver. The booklets, together with the charter statements and details of complaints procedures, can be obtained free of charge from the customer services unit at the PGO.
[top of page]
Appendix: standard forms (in England and Wales only)
84
The standard forms in this appendix can be used by a bureau or a client to draw up a third party mandate, a power of attorney or an enduring power of attorney. The wording must be followed exactly.
Standard form for third party mandate
85
To:................................................Bank plc.
Please accept this letter as my formal authority to consider ......................................(representative s name), until further notice is received from me, to be empowered on my behalf and in respect of my account and in my name:-
1. to draw, sign and endorse cheques notwithstanding that the payee of any such cheques may be the said ................................................. (Some banks may also allow the following to be included in the mandate: and further notwithstanding that upon debiting such cheques to my account, my account shall be overdrawn to a sum not exceeding £... )
2. to lodge and withdraw any security on my behalf or of mine, and generally in all dealings with the said account, to act as effectively as I myself can do, and this authority shall be binding upon my personal representatives in the event of my death, so as to authorise any acts of the said....................................................... (representative s name) from the date of my death until the receipt by you of written notice of my death.
Signed:..............................................................................................(name of account holder)
Standard form for general power of attorney
86
THIS GENERAL POWER OF ATTORNEY is made this ........... day of ............... 20..
by ...................................................................................................................(name of donor)
of ...............................................................................................................(address of donor)
.....................................................................................................................................................
.....................................................................................................................................................
I appoint .............................................................................................................(name of attorney)
of ..........................................................................................................................(address of attorney)
.......................................................................................................................................................
[or .................................................(name) of.................................................................(address)
and ..............................................(name) of..................................................................(address)]
jointly (or jointly and severally)] to be my attorney(s) in accordance with Section 10 of the Powers of Attorney Act 1971.
IN WITNESS whereof I have hereto signed this instrument as my deed in the presence of the person(s) mentioned below
SIGNED AS A DEED AND DELIVERED
by the said ......................................................(name of donor)
.............................................................(signature of donor)
in the presence of
....................................................................................................(name of witness 1)
of...................................................................................................................(address)
....................................................................................................................................
.....................................................................................................................................
.........................................................................................(occupation or description)
................................................................................................(signature of witness 1)
.....................................................................................................(name of witness 2)
of.....................................................................................................................(address)
...................................................................................................................................
..................................................................................................................................
.........................................................................................(occupation or description)
...............................................................................................(signature of witness 2)
Standard form for enduring power of attorney
Download a blank copy of this form in a printable pdf format
[top of page]
23 April 2007
© Copyright 2005 Citizens Advice. All rights reserved Registered charity no: 279057 Company no: 1436945 England
