3 Using an Enduring Power of Attorney
Once an Enduring Power of Attorney has been registered and the documentation received, it can be used at any time – you don’t have to wait for the donor to lose capacity. It might be that you (if you are the attorney) need to use it straightaway, if your relative is very ill, or you might need to use it every now and then for short periods while your relative is in hospital. On the other hand, the document might sit in a drawer for years before it is needed.
The attorney must show a certified copy of the Enduring Power of Attorney (not just a photocopy) to any organisation that they want to deal with on their relative’s behalf. If you want certified copies at a later date, any solicitor should be able to do this for a small fee (around £5 per copy).
Banks and using power of attorney
In January 2015 Which? research shows that not all banks give telephone or online access to power of attorney accounts. In addition, there's a lack of consistency about the availability of other facilities, such as a debit card or an overdraft. If any of these are important to you, check the different banks to establish what they do and don't offer. If your donor's bank won't give you what you need, you might have to think about moving the account to one that does.
To find out more about the framework that all banks should follow, see this page in the Retirement section of Which? Money.
If your relative lacks mental capacity
If your relative is no longer able to make their own decisions, it is too late to apply for an Enduring Power of Attorney. In this situation, if your relative does not have a valid Enduring Power of Attorney, then an application for a 'Controllership Order' can be made to the Office of Care and Protection. Anyone can apply for such an order, including a partner, family member, friend or a professional, such as a solicitor, or someone from the person’s local authority social work department.
If successful, the Master of the Court can authorise the Controller to do anything that appears necessary or expedient with respect to the property and affairs of the person lacking capacity.
This could be anything to do with their financial affairs including, for example:
- transfer and investment of money
- paying bills
- the sale or purchase of property
- making gifts or wills or the carrying on of a business.
Persons appointed under such orders have to report regularly and are monitored by the appropriate authority in relation to all actions and decisions taken in respect of your property and affairs. This supervision is considered appropriate given that an individual who has lost capacity is unable to appoint a person themselves and of their own choosing to act on their behalf.
Page last reviewed: January 2015
Next review due: March 2017