Management of a Resident's Affairs (Part 2)

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...