Enduring Power of Attorney Questions
Q. I've just received some papers to sign appointing me as "Enduring
Power of Attorney".
Not much explanation accompanying them, and I have not found clear
answers to the following in google searches:
1) Up until the time of any mental incapacity etc, are the powers
identical to Power of Attorney?
2) Up until the time of any mental incapacity etc, exactly what powers
(and obligations) do I have?
A. 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:-
a.. (depending on the terms of the power) the attorney will be able
to assume complete authority over the donor's affairs; and
a.. (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
a.. 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.
When the donor starts to become mentally incapable of handling her/his
affairs, 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.
An enduring power of attorney may authorise a person either:-
a.. to act as attorney with general or limited powers and to
continue to act as attorney when the donor becomes mentally incapacitated;
a.. to act as attorney only when the donor becomes mentally
incapacitated.
The wording of an enduring power of attorney is prescribed by
regulation. There is a pre-printed form, available from legal stationers.
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.