If you have been appointed as an attorney for someone who is no longer able to manage their own affairs, you have a responsibility to act in their best interests. We take a look at the role of attorney and how to represent someone.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney or EPA can be signed by someone to appoint a trusted friend, relative or professional to take decisions on their behalf in respect of their property and affairs, should they become unable to do so themselves.
It can be used straight away, for example, if the person signing needs help with going to the bank, or it can be kept to be used in the event that they lose mental capacity.
Why make an Enduring Power of Attorney?
An EPA allows an attorney to step in as soon as they are needed to help the individual in question. Without an EPA, when someone can no longer manage their own affairs, their relatives will not be able to simply take over operation of their bank accounts, collect benefits, make investments or deal with the payment of bills on their behalf.
This can cause considerable difficulty, for example, if someone needed to go into a care home. Without an EPA, it would be necessary to apply to the court for a receiver to be appointed to deal with matters. This takes considerably longer than simply registering an EPA and is also a more complex and expensive process.
Acting as an attorney
Your first duty as an attorney for someone who can no longer make their own decisions is to register the EPA with the court. A medical certificate will need to be obtained from a medical practitioner confirming that the individual has lost mental capacity. A copy of the application to the court to register the EPA should generally be served on the individual as well as their close relatives. This gives them the opportunity to object if they do not feel it is an appropriate step.
Once the EPA has been granted, the attorney has an obligation to act in the best interests of the donor at all times. The role can often involve considerable administration, so it is important to be organised from the start, to keep proper records and to ensure your actions are clear and transparent.
The donor’s money must be kept separate from your own and receipts should be kept and annual accounts prepared.
Unless otherwise specified, an attorney will usually be able to operate the donor’s bank account, make investments, buy or sell property on behalf of the donor, claim benefits and buy items for the donor that they may need.
The attorney must make sure that they protect the donor’s assets, for example, insuring and maintaining property, checking their investments and taking steps to ensure that investments are as secure as possible.
Acting in the donor’s best interests includes taking their past and present opinions into account when making decisions, to include asking for their input wherever possible, acting in good faith, consulting with their close relatives and respecting their confidentiality.
Actions to avoid as an attorney under an EPA
An attorney should not take any actions on behalf of the donor until the EPA has been registered at the court.
Decisions should be made by the attorney themselves and not delegated to anyone else.
The attorney cannot pay themselves for their work from the donor’s funds and cannot benefit themselves in any way from the position they are in. It is acceptable to recover expenses that are paid out.
The amount that can be gifted to others from the donor’s funds is limited and it is recommended that legal advice is sought before making gifts, to avoid difficulties.
Contact our Isle of Man EPA lawyers
If you have been appointed as an attorney under an EPA and you would like advice on your role or you wish to appoint a professional to act as your attorney, we will be happy to hear from you. To speak to one of our expert Isle of Man EPA advocates, ring us on 01624 665522 or email us: firstname.lastname@example.org.
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Patrick is the Head of Wills & Administration at Quinn Legal
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