Power of Attorney Flashcards
What legal document is used to set up a POA and who does it give power to?
Deed
The attorney - similar role to a trustee
What can’t an attorney do,
Give away property, unless the Deed specifically allows it?
Use the donees Powers of Trustee or Personal Representative
What are the requirements to set up a POA?
Documented
Signed (Someone can sign on your behalf if disabled, but would require two witnesses)
Witnessed by at least one other person
Can someone who lacks mental capacity
No
Businesses have to check power was properly set up, still valid and gives authority for the particular transaction but how do attorneys prove they have authority to act?
Produce original or copy certified by donor, solicitor or stockbroker
When are POA rights revoked
Bankruptcy
Death
Mental incapacity (Unless EPA)
Revoked at any time by donor
What happens if an attorney acts when they were not aware powers had been revoked?
Transactions till valid but no one liable
What is the difference between an Enduring (EPA) and an Ordinary POA?
EPA does not revoke on mental incapacity
EPA must be registered with The Court of Protection when donor becomes mentally incapable, the donor cannot then revoke without the courts permission
Can someone who is mentally incapable appoint an attorney?
No
When can an Attorney make gifts
A dependent
Gifts on marriage, birthday, Christmas if normally done
Charity if normally done
* Can’t make gifts for IHT Planning or to set up trusts without permission from the Court of Protection
Do EPA’s allow attorneys power to act before donor has lost mental capacity and EPA is registered with Court of Protection?
Yes to “Set Up” (Audio) not sure what this means?”
What is the purpose of the Court of Protection?
To protect the interests of people who lack capacity to act for themselves in the absence of an EPA or LPA it can appoint a deputy to manage the affairs, they have limited powers and the process is more expensive and long winded than a POA
What did the mental capacity act 2005 do?
(1) Covers people age 16 or over who are not capable of making decisions for themselves
(2) Everything must be in their best interest
(3) Replaced EPA Act
(4) Established new court of protection with wider powers so can now make judgements on welfare as well as finance
What are the five principles of the mental capacity act 2005?
(1) Assumed to have capacity unless proved otherwise
(2) Must be given all help before been treated as not capable
(3) Everyone has the right to make irrational decisions
(4) Must be done in their best interests
(5) Actions should be the least restrictive of their rights and freedoms
When should a persons lack of capacity be determined?
At the time a decision has to be made and with regard to the specific issue requiring the decision, so cannot generally label someone as incapable.
