Is an EPA the right choice for me?
Creating an enduring (EPA) or continuing power of attorney may be a good idea if: the person has property and savings, and needs to plan for possibly becoming incapable of managing their own financial affairs because of old age or mental incapacity and the person understands what the document can do, and the person understands the potential risk that could result from giving someone else control over their finances; and the person has two trustworthy people to act as attorneys who can act jointly; and the family members and loved ones all agree actions to be taken in the best interests of the person.
It is worth remembering that the vulnerable person needing protection does not have the Court’s protection until the EPA is registered.
People considering applying for an EPA registration should realise that it is an onerous responsibility. An EPA is effective for protecting a person’s finances and property.
The vulnerable person may suffer if the registration is contested.
People who do not agree what measures need to be taken when carrying out responsibilities also create difficulties.
If a registration is obtained, or appointee ship or receivership are agreed within families, it is hoped that nobody will challenge the day-to-day decisions being made.
Hopefully, decisions will be made in the best interest of a family member who is not competent to make their own. However, disputes are frequent.
EPAs should not be created for people who:
Do not understand what the document does and the potential abuse that could result from giving someone control over their money, assets, and property, or receive only small pensions or benefits and have no other income or property, or have learning difficulties and lack the capacity to create an EPA, or select attorneys who have known the donor only for a short time, or select attorneys who are unaccustomed to managing affairs associated with the donor’s property and finances, or have family members and loved ones who don’t trust one another, or out of kindness, may wish not to expose a loved one to the “risk of temptation” or suspicion, or are affected by mainstream psychiatric illness – especially revolving door cases, where you need to register the EPA, de-register, register again, and so on, or have won damages awards.
It is not recommended to have a EPA for someone who has won significant damages, because of the lack of security and accountability for the settlement.
If, for example, the NHS has to pay £3,000,000 in damages to someone, there is a public interest in ensuring that the damages are managed properly with a view to lasting for the whole of the patient’s lifetime.
Considerations
Appointees, attorneys, and receivers are obliged to use the money which they manage for the vulnerable person’s benefit. Money may pay for necessities, such as food, clothes, heating, as well as personal and health care.
If the person is in a care home, the cost of these necessities normally will be paid for in the cost of an inclusive care package. Money should also be available for items like sweets and newspapers.
Managing others’ affairs is limited to their financial affairs. Appointees, attorneys, and receivers have no right to control a vulnerable person’s decisions about:
Activities
who they see or have contact with
where they live, or
what they wear or eat.
People who are managing a vulnerable person’s affairs should not use the person’s car, disabled parking badge, or other assets for the benefit of anyone other than the vulnerable person, or they may be guilty of exploitation and abuse.
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