UK: Management of a Resident’s Affairs (Part 2)

Last Updated: 15 September 2004
Article by Andrew Parsons

Originally published June 2004

In a previous briefing we looked at the procedure for the Court of Protection to appoint a receiver to administer a resident’s affairs. Such an application may be made only when the patient has lost capacity to manage their own affairs. 1

There are limited possible ways in which an individual’s affairs may be managed by another person. In this briefing we look at the role of attorneys, either under a traditional power of attorney or an Enduring Power of Attorney.

Ordinary and Enduring Powers of Attorney

A Power of Attorney enables an individual to delegate to another the responsibility for any of his or her personal affairs.

There are two types of power. An ordinary power of attorney ceases to have effect when the person who grants the power (the donor) becomes mentally incapable. An ordinary power of attorney could be used to authorise the recipient of the power (the attorney) to do something such as purchase a house on behalf of the donor. An enduring power of attorney (EPA) continues even if the donor loses mental capacity. However the attorney has to apply to the Court of Protection to register the power once the donor becomes mentally incapable.

What is an EPA?

Broadly an EPA is a legal process in which a donor hands over to an attorney power to manage their financial affairs and property. The power can be specified to be used straight away or only to be used if the donor becomes mentally incapable of managing their affairs in the future.

Who can make an EPA?

An EPA can be made by an adult with the requisite mental capacity. To determine whether a person has the mental capacity to make an EPA the following conditions have to be satisfied:

  • The donor must understand that the attorney can take complete control of their affairs and their property once they become mentally incapable
  • The power continues if the donor becomes mentally incapable and can only be ended by the Court of Protection

Who should be chosen as an Attorney?

There is no real limitation as to who can act as an attorney. The person must be eighteen and must not be bankrupt. It is also sensible, from a practical point of view, to chose someone living in the same area and certainly in the same country. Family members can be appointed as can professional advisers such as solicitors. It can be sensible to appoint a family member as they will have an understanding of the donor’s financial situation and personal circumstances.

More than one attorney can be appointed under an EPA. If two or more attorneys are appointed they can act in one of two ways. Firstly, they can act jointly. This means that they have to act together. For example, they would both have to sign cheques. This can create practical problems which may prove inconvenient and lead to delays in dealing with the donor’s affairs. Another problem is that if one should become mentally incapable or die the power becomes ineffective.

Secondly, attorneys can be appointed jointly and severally. This means that the attorneys can act on their own. It is up to them to decide who assumes responsibility for what. The only problem is that this may provide a lack of protection for the donor’s property.

What power does an Attorney have?

When drawing up an EPA a donor can decide what power to give an attorney. General or specific authority to act on the donor’s behalf can be given. If general authority is given the attorney can do anything the donor would have been able to do. A general power can be very wide-ranging. An attorney could have complete control over a donor’s property, investments and savings so careful thought should be given to the extent of the power and the choice of attorney or attorneys. Alternatively a specific authority can be given to deal with a something in particular.

Limitations of EPAs

An EPA giving general authority to the attorney to act is still a limited power. It does not cover decisions as to the provision or withholding of medical treatment, the execution of a will for the donor or where the donor should live.

Delay until Donor is mentally incapable

EPAs are commonly drafted to include restrictions on the attorney’s authority. Usually the authority is delayed until the attorney believes that the donor is mentally incapable or is becoming mentally incapable.

Registration of the EPA with the Court of Protection

Once a donor has become mentally incapacitated an attorney is unable to act until the EPA is registered with the Court of Protection. Once the EPA has been registered special duties are imposed on the attorney. A specified list of relatives must be informed of the registration. When the EPA has been registered the donor cannot revoke or restrict it. The only way an EPA can be revoked after it is registered is if the Court of Protection decides it should be.

Cancellation of an EPA

An EPA can be cancelled at any time before a donor loses mental capacity. Executing a deed of revocation is the best way of doing this. The EPA cannot then be registered at the Court of Protection.

Change of Law

The proposed Mental Capacity Bill2 will change the law in this area. However, until that is enacted, when patients lose the ability or capacity to manage their own affairs, this can only be done for them by the appointment of a receiver through the Court of Protection, or the use of an enduring power of attorney.

Footnotes

1 See Care Homes Briefing No. 15 – copies available on request from RadcliffesleBrasseur.

2 A new draft Bill was published on 17 June 2004

© RadcliffesLeBrasseur

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.