unregistered enduring power of attorney use

[jane1960]

If an Enduring Power of Attorney has not been registered with the Court of Protection but has been put in place with a bank by the attorney, due to the donor being medically certified as suffering from dementia, is the bank legally allowed to act upon the EPA? This recently happened to my late mother resulting in the attorney cleaning out all of her bank accounts and cashing in her investments before she died.

[Barmaid]

Does the EPA have a limitation on only being able to be used if the donor loses capacity or is it a full EPA?

[jane1960]

It is a full EPA which was made in 2000 after she suffered her first stroke and was being treated with antipsychotic drugs. However it was not used until a doctor declared my mother mentally incapable in 2005. I have checked with the Public Guardian's office and they have told me it was never registered therefore should not have been used. None of her close family were even aware that the power existed until after she had died. I checked with her bank (all of her money, savings investments had been taken before she died including 87,000 which she received only three months before) and they confirmed that they had an Enduring Power in place and had acted upon it.

[themas]

My understanding is that if the EPA does not say it is only to be used once the donor becomes mentally incapacitated, then it can be used at any time after it is signed, & it does not have to be registered. However, it may be that it should still be registered when incapacity occurs (I am not sure about this).

If it was not limited in this way, then the bank is probably not at fault in accepting it.

However, the attorney has duties to keep all the financial affairs of the donor separate from his/her own affairs and to provide evidence of what has been done with the money. You should go back to the Public Guardian's office and ask how to go about get an investigation.

[LoftyLottie2]

I have just registered my power of attorney for my mother. Yes the bank is legally able to to act upon the EPA before registration. I have been conducting my mothers affairs since 2006 without it being registered.

EPA's have now been replaced with Lasting Power of Attorneys (2007) which are much more stringent to avoid such things happening.

Anybody however who has an existing unregistered power of attorney can still carry on as they have been doing.

[Barmaid]

Themas, reckon you hit it spot on. Although I have a case on exactly this point tomorrow. My prep and research is ongoing........

[LoftyLottie2]

My mother does not now have the mental capacity to deal with things herself which is why I have just registered it, just to safeguard her and myself when I need to sell her property, although it seems to be up to solicitors, etc. whether they would want it registered. No other organisations, e.g. tax office, pension scheme have required it to be registered before dealing with me. Very airy, fairy indeed!

My Enduring Power of Attorney had no restrictions. Some have.

[LoftyLottie2]

I was given wrong information by the Public Guardian Office. They informed me I shouldn't have been using it before it was registered!!! It depends who you get at the Call Centre. Fortunately I had been warned by my solicitor that the Call Centre staff were not well trained. Some are excellent - others really don't know what they are talking about!! A dreadful state of affairs.

[terambulan]

I understood, from the green form, you have POA as soon as the doc is signed but 'enduring' POA to be filed after 3 months if the person is still incapacitated.

[LoftyLottie2]

I keep all my mother's bank transactions separate and keep receipts, etc. I am letting her house and have had to finance some repairs, etc. from her funds. All rental monies go back into her bank.

You recently do need to get an investigation going!!

Good luck.

[LoftyLottie2]

I've never heard of that terambulan. My Power of Attorney was signed and stamped to be effective immediate and my mother had the right at any time to revoke it. At such time that she might lose the ability to deal with her affairs, then the EPA had to be registered. This involved giving my mother a form to tell her what I was intending and also informing whatever relatives were necessary by sending them a form.

[jane1960]

OK thanks very much. The Office of the Public Guardian advised me that this is a criminal offence and should be a police matter.

I was not clear on the banks position by accepting an unregistered EPA, as the attorney only had access to it once my mother's dementia had left her unable to make her own decisions. The attorney took her away from her husband and home along with all her personal papers etc., and went to the bank with them all!

Two years after she was certified as suffering from an enduring mental illness, with her attorneys help she filed for divorce and made a new will... guess who was the main beneficiary and sole executor? yes the attorney! Everything totally contrary to her previous Wills.

The attorney refuses to send the will for probate as she actually left nothing at all and he also refuses to submit any accounts.

I

[LoftyLottie2]

Oh my goodness. How dreadful. Yes, it does sound very much like a police matter. This is criminal behaviour. I would seek the advice of a solicitor initially if it were me.

Her attorney obviously seized the opportunity to commit these offenses before your Mum got to the stage where she wouldn't have been able to make a new will, file for divorce etc.

It's a good thing that EPA's have now been replaced with LPA's and everything tightened up. I often think that if I had not been an honest person I could have got away with so much. Even registering the EPA is full of flaws. I had to send forms to various relatives of my mother to inform them what I was doing and they had five weeks to inform the Office of the Public Guardian if they were not happy. The same applied to my mother, who can't understand the form I had to give her anyway. The Office of the Public Guardian don't even have proof that I sent these forms. There is no need for the relatives to even sign that they have received them from me!

[jane1960]

Hi, yes it is a really bad case especially since the attorney happens to be my brother. I am really trying to find my way around the fact that the banks were not alarmed at the amount of money being taken from an elderly ladies account where an EPA was in place, due to her mental incapacity.In fact I am completely amazed that banks do not require a sealed, stamped, registered etc.,document in order to act.. I find it quite frightening how easy it is to help yourself to someone else's money without fear of any consequences.

This case is now being investigated, I don't think that anyone should be able to get away with stealing in such a way. I think that he organised the divorce because he knew that he would get his hands on a nice sum of money and he organised the will change so that he didn't have account or explain to me where the assets were as I was always joint heir with him in all of mums previous wills. In the later will dated April 2007, two years after her doctor had issued her statement of mental illness, I was left a small legacy only, which of course I have not seen!!

If I had been notified or known anything about this I would have objected as would my stepfather. We were never notified that such a document ever existed.

[LoftyLottie2]

It makes it worse that it's your brother, but unfortunately these things happen in families - just greed!! He knew exactly what he was doing, didn't he! To think I religiously keep every invoice I spend on behalf of my Mum and even feel somewhat guilty at buying myself the gifts she insists I have at Christmas!

When I first when to Mum's bank with my EPA, they said they would always question large quantities being taken out of any accounts run by attorneys. I wonder whether they actually would. Mind you they knew both my Mum and me personally and it's only a very small town.

Even knowing that I am an only child and noone else will benefit from any estate, I can honestly say that I still look as her money as 'hers' and am very careful that it is used in her best interests.

[jane1960]

Hi Lottie,

I would being doing just as you are, and you are right, it is sad but it does happen in families. Unfortunately my brother has always been a complete incompetent when it comes to money matters. I am going to apply for letters of administration in order to try and find out what exactly has gone on and then take it from there.

Janey

[LoftyLottie2]

Good Luck with this Janey.

I shall look on this thread from time to time. Please keep me posted.

LL

[jane1960]

Thank you, I will.

[themas]

You say the attorney only had access to the EPA once the dementia had taken hold. But if the EPA had no restriction on it (see my previous post) he could have taken it to the bank & they could have accepted it without question. They would not necessarily know of the dementia.

[jane1960]

HI themas,
Once my mother was declared to be suffering from an enduring mental illness, my brother ordered the EPA to be released from her solicitors to a new solicitors of his choice, then he took it to the bank and bingo... I am slowly finding all of this out as neither my mum's husband or I were ever aware that such a document existed.

Here in Spain the validity of such a document is always checked by the banks.