Times POA Article

[Natashalou]

I was suprised by this as I assumed the POA once registered brought to an end the donors control over his or her finances. This seems to suggest otherwise. Any comments?

http://business.timesonline.co.uk/tol/business/law/article2250722.ece

 

[jenniferpa]

I read this last week (and have linked to it elsewhere). The peculiar thing I think about the article is the way it's presented: what can go wrong. Actually it turned out the courts decided that the person in question did NOT have testementary capacity (which is what you would expect), and the new will was set aside. I think the point that the article is trying to make, but not particularly clearly, is that even if an EPA has been registered unless you can physically stop someone from signing a new will or entering into a contract the only way to set either of those aside is to go to court, which again, is not entirely unexpected. It's also not clear from the report how much weight the court placed on the fact that there was a registered EPA: it obviously had some weight but I'm not sure how much. I suppose they were trying to tell people that just because an EPA has been registered that doesn't mean that if a new will turns up signed after registration that it is automatically considered invalid. In fact, I think that the latest of any wills (provided that there hasn't been a new marriage) is assumed to be valid unless proved otherwise. The burden of proof when it comes to wills is on the person challenging.

Jennifer

 

[sue38]

Quote from the article:-

If this person feels that the donor has reached a point where he or she can no longer cope, he or she can apply to the Public Guardianship Office (the PGO, the administrative arm of the Court of Protection) to have the EPA registered – and thereby gain certain powers to manage the donor’s affairs.This process is not automatic: power of attorney is granted only after rigorous scrutiny and the donor has a right to object.


Sorry but the bit in bold is completely misleading. By registering the EPA the attorney does not gain any more power over the donor's affairs (unless the EPA specifically states that it is not to be used until registered) and if no one objects to the registration there is no 'rigorous scrutiny'. Provided that the EPA is valid the PGO will simply register and send it back.

However it is true that registering an EPA does not remove all the donor's capacity to make a will, sign contracts etc.

The test for testamentary capacity is basically that the Testator (i.e. the person making the will) knows the value of their estate, who their family members are and the responsibilites owed to them, and is able to give clear instructions. This they may be able to do even if they can no longer write a cheque, pay bills and so forth.

One thing the Court will have looked at is whether the Solicitor (or will-writer in the above case ) enquired about the existence of a previous will and if there was a significant change that person should have heard major alarm bells ringing!

If there is any question of dementia and particularly where the terms of the will seem unusual, a doctor's opinion should be sought on the Testator's capacity.

 

[Natashalou]

I did wonder what the "rigourous scrutiny" actually was. I just sent off the form and it seemed to be automatic. I have nothing to hide but I wonder what of my affairs was looked into behind the scenes if any or if they just mean they see if there are any objections?