28 Dealing with Someone Else's Affairs
2. What is 'mental capacity'?
3. When can I deal with someone's financial affairs?
4. How can I help someone to collect or spend their benefits and pensions?
5. When can I have access to someone's bank accounts?
6. What must an attorney do?
As an attorney you may only do things you have been authorised to do, as stated in the EPA document. Whatever the document says, you must always:
- use the same degree of care and skill as if you were conducting your own affairs;
- exercise proper professional competence, if you are a paid attorney acting in the course of your profession;
- act in good faith, telling the donor of any conflicts of interest you face;
- keep the donor's money in a separate bank account and not mix it with your own;
- keep separate up-to-date accounts of the donor's affairs; and
- apply for registration of the EPA and tell the donor and certain members of the donor's family as soon as the donor becomes or is becoming mentally incapable of managing their own affairs.
What does registering an EPA mean?
As soon as you believe the donor has become, or is becoming, mentally incapable of managing their own affairs, you must apply to the Public Guardianship Office (PGO) to have the EPA registered by the Court of Protection. If the EPA is not registered, it will stop being valid as soon as the donor loses their mental capacity. The PGO can send you a registration pack with information and the forms you need to fill in. You can also download these from the PGO website.
You must tell the donor and three of the donor's closest relatives that you are applying for the EPA to be registered. The particular relatives you must tell are set out in rules that the PGO will give you. The people you tell can object if they think:
- the EPA is invalid;
- the donor was put under undue pressure to create the EPA, or it was created fraudulently;
- the person is not yet becoming mentally incapable; or
- you (or another attorney) are unsuitable.
If the donor or a relative objects, the Court of Protection will decide whether the EPA can be registered. You have to pay to register the EPA, but this can be paid for out of the donor's money. The PGO will tell you the current fee. If neither you nor the donor can afford the fee, you can apply to the PGO to delay paying the fee or for it to be waived.
What happens after the EPA is registered?
Once the EPA is registered, you (and any other attorneys) can take over handling the donor's property and affairs, in line with what is in the EPA document. The donor cannot then cancel the EPA without the Court of Protection's agreement. Usually the donor stops making their own financial decisions, but any decisions should be discussed with them as much as possible. There are no automatic checks that attorneys are fulfilling their duties properly. However, the donor can make arrangements for some checks in the EPA, for example by requiring the attorney to provide annual accounts or having an accountant or solicitor check them.
Either way, the PGO can be asked to investigate any concerns about the way attorneys use their powers. Any serious problems will be referred to the Court of Protection. The court has power to call for accounts from an attorney and can remove the attorney if it believes the attorney is abusing their power or otherwise not fulfilling their duties.
As an attorney acting under an EPA, you have authority to deal only with the donor's finances and property, as outlined in the EPA document. You do not have any right to make decisions about the donor's personal care or welfare, or about healthcare or treatment. However, being in control of the donor's money may mean that you could be involved in these decisions.
If the donor is a trustee
A trust is a legal arrangement where someone (a beneficiary) can arrange for other people (trustees) to look after money or property for them. A common form of trust is when two or more people own a property jointly - in this case, the owners are both trustees and beneficiaries.
An attorney acting under an EPA can carry out a donor's trustee role if it is to do with property that the donor owns or is a beneficiary of. But if the donor is a trustee of any other kind of trust, the situation is more complicated, and you will need to seek expert legal advice.
7. What if there is no enduring power of attorney?
8. What must a 'receiver' do?
9. What if a person recovers their mental capacity?
10. How can I make sure a disabled relative is cared for after I die?
11. Can I deal with decisions about someone's healthcare?
12. What if the person becomes involved in court proceedings?
13. Protecting vulnerable people from abuse
14. Further help
15. About this leaflet
This leaflet is published by the Legal Services Commission (LSC). It was written in association with Penny Letts, a policy consultant specialising in mental health and capacity issues.
Leaflet Version: November 2019