Donate to Remove ads

Got a credit card? use our Credit Card & Finance Calculators

Thanks to kiloran,Anonymous,Howard,Gostevie,JuanDB, for Donating to support the site

Enduring Power of Attorney

including wills and probate
raybarrow
Lemon Pip
Posts: 84
Joined: November 6th, 2016, 8:14 am
Been thanked: 8 times

Enduring Power of Attorney

#409208

Postby raybarrow » May 4th, 2021, 11:32 am

Hi Folks,

A recent question (not mine) about a will prompted me to look at ours. They are very simple and OK.
However, Mrs B and I did sign Enduring Power of Attorney forms, downloaded from a website, back in 2007, when we were a lot younger. They were for financial power rather than medical. They were witnessed but never registered anywhere.

My feeling is that the world has moved on and such documents are 'past their use by date'. I am in my 70s and Mrs B has mobility problems at the moment. Would I be right in thinking that the best plan would be for us to start again with the POAs through the Gov.co.uk site and bring them into the 21st century. I no this is going to cost but at least it will be done 'properly'.

Cheers,
Ray.

Clitheroekid
Lemon Quarter
Posts: 2181
Joined: November 6th, 2016, 9:58 pm
Has thanked: 954 times
Been thanked: 2410 times

Re: Enduring Power of Attorney

#409248

Postby Clitheroekid » May 4th, 2021, 1:56 pm

The Enduring Powers of Attorney are still valid. In many ways they were much better than Lasting Powers of Attorney, which replaced them. They were much simpler to understand and execute, and there was no need to register them before they could be used. By definition, many people entering into an LPA are already suffering some mild mental issues, and it was much easier to explain and have executed a 4 page document than a 22 page one.

They differed from LPA's, in that they could not be registered unless and until the donor lost mental capacity, at which point they had to be registered to remain valid.

They will generally do everything that a financial LPA will do, though they don't cover matters dealt with by the Health & Welfare LPA. Having said that, most people don't bother with a H&W LPA anyway.

My own view is that provided you're still happy with the choice of Attorney(s) and there are no specific provisions you want to make then there's very little point in going to the hassle and expense of entering into LPA's.

Lootman
Lemon Half
Posts: 9958
Joined: November 4th, 2016, 3:58 pm
Has thanked: 109 times
Been thanked: 1907 times

Re: Enduring Power of Attorney

#409269

Postby Lootman » May 4th, 2021, 3:07 pm

Clitheroekid wrote:The Enduring Powers of Attorney are still valid. In many ways they were much better than Lasting Powers of Attorney, which replaced them. They were much simpler to understand and execute, and there was no need to register them before they could be used.

Yes, as a consumer I would second that EPAs are as good or better than what replaced them.

My attorneys can simply take the document to a financial institution and that is sufficient to enable them to act on that account. No need for pesky registration, as noted. With a EPA the document IS the power. (But don't lose it of course).

I am grateful to my solicitor who, as the transition date approached in 2007, took the initiative to contact me to suggest getting an EPA before the rules changed. I completed my EPA on the very last day that they could be created, and have never been tempted to replace it with a LPA.

raybarrow
Lemon Pip
Posts: 84
Joined: November 6th, 2016, 8:14 am
Been thanked: 8 times

Re: Enduring Power of Attorney

#409302

Postby raybarrow » May 4th, 2021, 4:48 pm

Hi Folks,

Thanks for prompt responses. I shall leave well alone. It looks another case of 'If it isn't broken, don't fix it'

Cheers
Ray.

DrFfybes
Lemon Slice
Posts: 977
Joined: November 6th, 2016, 10:25 pm
Has thanked: 99 times
Been thanked: 417 times

Re: Enduring Power of Attorney

#409462

Postby DrFfybes » May 5th, 2021, 8:13 am

I have had one issue with mum's EPA.

Skipton refused to accept it without a solicitor's stamp. I walked across the road to the Sols we used to buy the house, they copied it, stamped it as a true copy and signed it, I put a fiver in the charity box, and Skipton were satisfied!

The issue with Marcus doesn't really count - they kept insisting the page with my signature was missing. I knew this was wrong as it was on the other side of the paper to my sister's sig (which they had). it took 6 weeks and countless emails and phone calls before we established they'd scanned it single sided.

Paul

yorkshirelad1
Lemon Slice
Posts: 424
Joined: October 5th, 2018, 1:40 pm
Has thanked: 97 times
Been thanked: 122 times

Re: Enduring Power of Attorney

#409503

Postby yorkshirelad1 » May 5th, 2021, 10:29 am

As others have said, an existing EPA is still valid (although you can't create a new EPA now), although some institutions need to have the difference between EPA and LPA explained. The new LPA is more form filling and admin. If you only have simple financial needs, then the EPA should suffice. If you want to do H&W as well, then you might want to consider the LPA.
If you have an EPA and want to create an LPA, you should probably get correct legal advice about whether they co-exist or not.
I'm not about to land you with legal fees, and it's perfectly possible to do the LPA yourself via the OPG with the information on gov.uk, but if you are both doing LPAs, and want to do both H&W and financial, and one or other of you has health issues, you might want to use a solicitor: it might save you hassle in the long run and be money well spent: it depends on your circs and the affairs involved.
I had an EPA for my Mum which worked well once I'd worked out the spiel to deliver to utility companies etc (the EPA lapsed when she died, and I was her exor). I have my own LPA.
IANAL.

As an aside, if you read the Money sections in the Saturday papers, there are regularly horror stories with the way banks deal with POAs: sometimes they are not very good with them. One way to deal with this is that many banks have what is often called "Third Party Authority". This is were you can give access to your bank accounts to e.g. a family member. The banks understand these forms as they create them. It's not POA, but it gives access to your bank account to e.g. a family member without the hassle of having to lodge POA with your bank. The end result is the same, the implementation might be a lot easier with the bank's own forms! For example, I have third party authority for my sister's bank account, and I can do everything I need to on her behalf (including phone and online), but it's not POA.

raybarrow
Lemon Pip
Posts: 84
Joined: November 6th, 2016, 8:14 am
Been thanked: 8 times

Re: Enduring Power of Attorney

#409519

Postby raybarrow » May 5th, 2021, 11:20 am

Hi Yorkshirelad,

I'm from Lancashire, myself, but that's ok.

I might have a word with the friendly solicitor who is dealing with a neighbour's estate (I am one of the executors) just to get an idea of costs. Getting control of each other's money is not an urgent problem as we have joint and sole accounts operated online (who knows who is pressing the keys?).

You reminded me of the Third Party Authority (TPA) which is something I hadn't heard of until my neighbour died. His nephew had a TPA to access funds if required. Must have a look, maybe something for the children to have at some point.

I also opened a Starling a/c for 'no-fee' use abroad debit card to compliment the 'no-fee' Clarity credit card, just before the first lockdown. The best laid plans eh!. They do a 'connected card' for a third party but with a limit, unlike most additional credit cards which have no limit. So much information, so much time to research it.

Cheers,
Ray.

9873210
2 Lemon pips
Posts: 221
Joined: December 9th, 2016, 6:44 am
Has thanked: 45 times
Been thanked: 56 times

Re: Enduring Power of Attorney

#409651

Postby 9873210 » May 5th, 2021, 7:52 pm

yorkshirelad1 wrote:As an aside, if you read the Money sections in the Saturday papers, there are regularly horror stories with the way banks deal with POAs: sometimes they are not very good with them. One way to deal with this is that many banks have what is often called "Third Party Authority". This is were you can give access to your bank accounts to e.g. a family member. The banks understand these forms as they create them. It's not POA, but it gives access to your bank account to e.g. a family member without the hassle of having to lodge POA with your bank. The end result is the same, the implementation might be a lot easier with the bank's own forms! For example, I have third party authority for my sister's bank account, and I can do everything I need to on her behalf (including phone and online), but it's not POA.


My understanding is that a Third Party Authorization is a power of attorney. A POA is "an authorization to act for another person in specified or all legal or financial matters". A TPA fully meets that definition, and follows the same general laws.

However unless it explicitly says otherwise any POA will be an Ordinary Power Of Attorney and should terminate if the grantor loses mental capacity. So most TPA will fail just when you most need them. Now it is entirely possible that banks and others are not adequately enforcing this, but that is not something to rely on. Any bank could hire competent personnel at any time, unlikely though that may be.

Lootman
Lemon Half
Posts: 9958
Joined: November 4th, 2016, 3:58 pm
Has thanked: 109 times
Been thanked: 1907 times

Re: Enduring Power of Attorney

#409655

Postby Lootman » May 5th, 2021, 8:06 pm

9873210 wrote:However unless it explicitly says otherwise any POA will be an Ordinary Power Of Attorney and should terminate if the grantor loses mental capacity. So most TPA will fail just when you most need them. Now it is entirely possible that banks and others are not adequately enforcing this, but that is not something to rely on. Any bank could hire competent personnel at any time, unlikely though that may be.

The ultimate irony of these devices is exactly that. You never need them until the grantor loses capacity and then someone will come along and claim that that loss of capacity invalidates the very thing designed to work in that situation!

In practice it doesn't work that way. If an attorney shows up at a bank with the paperwork then that bank will execute based on it. Nobody broadcasts a loss of capacity and nobody assumes one. There is of course a risk that transfers thereby enacted may later be challenged, although that is unlikely to prevail as long as the attorney was genuinely acting in the interest of the grantor.

In practice a POA works until the institution is informed of the death of the grantor. At that point, assuming the attorney is also the executor, then the transition of authority to act is seamless and continuous.

yorkshirelad1
Lemon Slice
Posts: 424
Joined: October 5th, 2018, 1:40 pm
Has thanked: 97 times
Been thanked: 122 times

Re: Enduring Power of Attorney

#409752

Postby yorkshirelad1 » May 6th, 2021, 9:57 am

9873210 wrote:
yorkshirelad1 wrote:As an aside, if you read the Money sections in the Saturday papers, there are regularly horror stories with the way banks deal with POAs: sometimes they are not very good with them. One way to deal with this is that many banks have what is often called "Third Party Authority". This is were you can give access to your bank accounts to e.g. a family member. The banks understand these forms as they create them. It's not POA, but it gives access to your bank account to e.g. a family member without the hassle of having to lodge POA with your bank. The end result is the same, the implementation might be a lot easier with the bank's own forms! For example, I have third party authority for my sister's bank account, and I can do everything I need to on her behalf (including phone and online), but it's not POA.


My understanding is that a Third Party Authorization is a power of attorney. A POA is "an authorization to act for another person in specified or all legal or financial matters". A TPA fully meets that definition, and follows the same general laws.

However unless it explicitly says otherwise any POA will be an Ordinary Power Of Attorney and should terminate if the grantor loses mental capacity. So most TPA will fail just when you most need them. Now it is entirely possible that banks and others are not adequately enforcing this, but that is not something to rely on. Any bank could hire competent personnel at any time, unlikely though that may be.


Interesting angle. Thank you. I suppose if there is the chance of loss of capacity, then LPA is the way to go. One hopes one never has to use an LPA. In the interim, if one's elderly relative needs a bit of help with their banking, TPA is a quick and useful way of achieving that without full-blown LPA. I have a feeling that I've also heard that if one gives a bank an LPA, the attorney takes over the account and the donor no longer has access (currrently loooking for a source to back that up), which might not be the desirable situation where all that's required is a bit of assistance with banking and the donor is not ready to give up control/access etc. Horses for courses! Perhaps the desirable situation is make an LPA and have it ready in reserve and use the simpler TPA for banking in the interim (as it happens, that what I did for my Mum).


Return to “Legal Issues (Practical)”

Who is online

Users browsing this forum: No registered users and 3 guests