Powers and duties of trustees and power of attorney

Question 1

General Power of Attorney

Answer 1

• Temporary measure
• Only valid for as long as donor has capacity
• Not registered with OPG
• Revoked if donor/attorney loses capacity/becomes bankrupt/dies
• Or the donor can revoke the power
• Or the term comes to an end

Question 2

Types of LPA

Answer 2

• Property and Affairs
• Health and Welfare
• (Must be separate LPAs)

Question 3

Types of EPA

Answer 3

• Property and Affairs only

Question 4

Legal requirements for LPA/EPA

Answer 4

• In writing, witnessed by independent person
• Signed by donor and attorney with no undue pressure
• Must state that donor and attorney have read information and understand their duties
• Donor and attorney must be 18+ and of sound mind
• Attorney must not be bankrupt

Question 5

Registration of an EPA

Answer 5

• Donor cannot register themselves, must be registered to CoP by attorney when donor is losing or has lost capacity
• Attorney must give written notice to donor, other attorneys and 3 closest relatives before application can be seen by courts

Question 6

Registration of LPA

Answer 6

• Donor/attorney can apply for LPA to be registered
• Registration can take place at any time after arrangement has been executed

Question 7

Duties of attorney under EPA

Answer 7

• Duty to register EPA
• Common law duty to act in donor’s best interests

Question 8

Duties of attorney under LPA

Answer 8

• Statutory duty to act in donor’s best interests
• Must follow Mental Capacity Act code of practice
• Must only make decisions that the terms allow them to make
• Mustn’t pass on powers unless authorised to do so
• Must keep affairs confidential
• Make sure decisions benefit donor
• Liaise with CoP/OPG

Question 9

Replacement attorneys

Answer 9

• EPA not possible
• LPA possible

Question 10

Divorce

Answer 10

• Will end appointment of spouse as an attorney

Question 11

Bankruptcy

Answer 11

• PoA revoked if donor/attorney is bankrupt
• But not Health and Welfare LPA

Question 12

Gifting

Answer 12

• Attorney can do so where it is expected or seasonal
• But not possible for IHT planning

Question 13

Court of Protection

Answer 13

• Decides whether a person has capacity
• Make decisions where a person lacks capacity and no PoA in place
• Appoint deputies if no PoA in place
• Decide whether EPA/LPA is valide
• Remove attorneys who fail to carry out their duties
• Hear cases concerning objections to registration of EPA/LPA

Question 14

Office of Public Guardian

Answer 14

• Take action where there are concerns about an attorney
• Register EPA/LPAs
• Maintain register of attorneys/deputies
• Supervise deputies appointed by CoP
• Look into reports of abuse by registered attorneys