How to effectively use an enduring power of attorney

My step-mum is 83, has advanced Alzheimer’s and lives in a care home in Northampton.

She was diagnosed with Alzheimer’s in 2003 and soon after, she and dad decided it would be a good idea to have an Enduring Power of Attorney (EPA) drawn up for when she reached the stage where she could no longer mange her own affairs

The experience taught me a lot, and I’d like to share with you what I’ve learned about EPAs and their replacement – the Lasting Power of Attorney.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney enables you to make decisions about someone else’s property and money. The person who grants you permission is known as a ‘donor’, and you subsequently become their ‘attorney’.

It goes without saying that being granted an EPA is a considerable responsibility, and it’s therefore vital that any decision you make on the donor’s behalf is in their best interests (I highly recommend reading this page for further information: Mental Capacity Act Code of Practice).

An overview of EPA rules

There are some general rules which apply to EPAs – four of which I’d like to draw your attention to in this blog:

1. Who can make a power of attorney?

In order to make a power of attorney, you need to be capable of making decisions for yourself – otherwise known as having mental capacity. Please seek professional advice if you’re unsure, but disabilities and issues that commonly prevent your ability to make decisions in the eyes of the law include:

  • Dementia
  • Stroke
  • Alcohol and drug misuse
  • Side-effects of medical treatment

2. Who can be an attorney?

Anyone can be an attorney providing they are over 18 years of age and capable of making decisions.

3. Is more than one attorney allowed?

Yes. Joint attorneys can either act together or independently.

4. What are an attorney’s responsibilities?

When granted an EPA, you must:

  • act in the best interests of the donor;
  • only undertake the things the donor has authorised you to do;
  • not ask anyone else to carry out the duties;
  • keep separate, up-to-date accounts of the donor’s financial affairs.

How to register an Enduring Power of Attorney

If you need to use an EPA after someone has lost their mental capacity, it must be registered with the Office of the Public Guardian. Before doing so, you need to notify the donor, any additional attorneys and at least three of the donor’s nearest relatives.

Once you’ve provided notice, you’ll need to complete form EP2PG, which comes with a registration fee. You may be among those who don’t have to pay the fee, but to find out more, I recommend taking a look at the Ministry of Justice’s website.

It’s important to note that it can take a few weeks to register with the Office of Public Guardian (10-12 weeks is not unusual).

Ending an EPA

Once you have finished dealing with someone’s affairs, or they no longer want you to, there are a number of ways an EPA can be withdrawn, including:

  •  you, as the attorney, can say you no longer want the EPA;
  • the donor can cancel it;
  • a court order can demand it;
  • the court can end an EPA if the attorney is deemed to have abused their position or used excessive pressure to make the donor issue the EPA.

And finally… Lasting Powers of Attorney

In 2007, Enduring Powers of Attorney (EPA) were replaced by Lasting Powers of Attorney (LPA).

Donors can change their EPA to an LPA if desired. Thankfully, it’s remarkably straightforward; if the former is not registered, they can simply destroy it and complete an LPA form (an LPA isn’t valid until it has been registered).

EPAs that have been registered can alternatively be kept and an LPA registered to deal with the donor’s personal welfare (something for which an EPA cannot be used).

Despite the replacement, EPAs are still in use today and act as a source of comfort for many. My step-mum’s EPA is still valid and it’s a relief knowing that her affairs are now organised and, if I need to speak to anyone, they know who I am.

Image credit

Dying Matters Awareness Week: What Can You Do?

Every May, the members of Dying Matters host an ‘Awareness Week’ to elevate the importance of talking about death and place the topic of bereavement firmly on the national agenda.

Research suggests that 83% of the population in Britain are uncomfortable talking about death and dying, which is why last year’s awareness week was focused on having the ‘big conversation’. It highlighted the importance of talking about dying, but recognised the challenges people face when discussing and planning for their passing.

Dying Matters Awareness Week is a timely reminder for us all that death and bereavement are topics we must face. It forces us to ask “what can we do?” – the answer to which comes in 5 simple steps:

1. Talk about your end-of-life wishes

We all know that death is inevitable, but if we don’t talk about our end-of-life wishes with loved ones, they’ll never know what we really wanted when the time comes.

Talking about death will help with the bereavement process, and although starting the conversation is the hardest part, once you cross that hurdle, It’s vital that you share with those closest to you what you would – and wouldn’t – like to happen when you die.

2. Write a Will

Figures from 2016 suggest that more than half of the people in this country haven’t written a Will. More worryingly, nearly four in ten of the over 55s have no Will at all.

Don’t leave it too late. Your Will outlines how your assets will be shared when you pass away; it provides peace of mind and will make it much easier for your family when the time comes.

3. Prepare in advance for your funeral

Funerals are becoming increasingly expensive, and often represent one of the most significant pain points for families following the passing of a loved one.

Some of that worry and uncertainty can be relieved by preparing for your funeral in advance. While it might feel morbid to do so, you’ll lock in the cost and arrangements well in advance, which will remove a great deal of burden from your family when the time comes.

Preparing for your funeral also ensures the process will be carried out exactly as you wish, and gives you further peace of mind.

4. Take into account future care

None of us know what lies ahead. As we get older, our ability to make decisions often reduces as we become mentally incapable, which is why preparing in advance by putting in place a Power of Attorney (POA) is advisable.

A POA allows you to appoint someone to make decisions for you, should you become incapable of doing so yourself and leaves you safe in the knowledge that your future is in the hands of someone you trust.

5. Become an organ donor

The ‘Taking Organ Transplantation to 2020’ strategy aims to increase organ donation consent rates by 80% as we reach that year, and is a timely reminder that we can all provide an invaluable service for the NHS following death.

As always, it pays to be open about such matters, therefore if you decide to become an organ donor, make sure you tell those closest to you and add yourself to the official NHS donor register by clicking here.

Final thought

Dying Matters Awareness Week reminds us all that death is a topic that must be accepted. More importantly, by accepting its inevitability and being able to talk about death openly, you’ll leave your loved ones far better equipped to cope with your passing when the time comes.

As the members of Dying Matters say – let’s talk about it!

How to execute a Will after death

how to execute a Will

When my dad died, we knew he had a Will but I had no idea he’d  appointed me as one of his executors. He’d occasionally tell me I’d need to help him with “his papers”, but I hadn’t really given it much thought at the time.

Not long after his death, I found myself staring at a table full of documents with absolutely no idea where to start. If you’ve been appointed an executor, you’ll know the feeling well. Unless you’ve done it before, there’s no manual to turn to, and no course you can take that will help you deal with this complex, emotional process.

Thankfully, the steps required to execute a Will are relatively straightforward once broken down and achievable with the right support.

What is probate?

Probate is the term used to describe the process of dealing with someone’s estate and involves finding out about their assets, debts and value of the estate.

Executors are responsible for probate and administering the Will, but the task is sometimes passed onto a solicitor. You may be tempted to do just that, but before investing in such services, consider whether it might be better financially to complete the forms yourself and simply pay a solicitor to check them over.

Following my dad’s death, I decided to jump in and sort the papers myself. It took me five days and when we sat down with the solicitor, I handed him a rough spreadsheet listing everything. “Great job,” he said. “I can’t believe you did all this in five days”.

What is a grant of representation?

As executor (or joint executor), the job of probate will fall on your shoulders. For some, probate can be relatively straightforward, but the task will become more complex if a grant of representation is required.

This is the official document that confirms you’re allowed to administer and distribute the deceased’s assets and may be requested by banks before they release any funds.

However, grants of representation aren’t always required. If the estate is of low value (usually worth less than £5,000) and doesn’t include property, land or shares, the probate can be undertaken without the grant.

How do you value someone’s estate?

The process of valuing someone’s estate starts by identifying their assets. These may include bank accounts, properties, belongings, investments and vehicles, but you’ll also need to look for any pensions and life insurance policies.

An estate agent is best placed to value any remaining property, while the providers of other financial assets will be able to give you a valuation after death.

Although you may stumble upon the odd surprise, it’s also important to check for debts, credit card balances, loans and mortgages. The cost of the funeral can also be deducted from the estate, so be sure to make a note of all the expenses you incur arranging the funeral.

What about inheritance tax?

Form filling is very difficult to avoid during probate, and even if there’s no tax owed, you’ll probably still have to complete an inheritance tax form.

If the estate you’re dealing with doesn’t incur inheritance tax, it will be declared an ‘excepted estate’. This will be down to one or a combination of the following:

  • the deceased lived permanently abroad and died abroad with UK assets below £150,000;
  • the estate is of low value and sits below the UK inheritance tax threshold;
  • the deceased left everything to a spouse, civil partner or charity.

If the estate is excepted, you can complete a shorter form, but if there is any tax owed at all, you’ll need to opt for the larger version – a task which benefits significantly from professional help.

In addition to the inheritance tax form, you’ll also need to complete a probate form (PA1), which can be found on the HM Court’s website.

What happens next and how long will it take?

When all the forms have been completed, they are sent to the Probate Registry, and as executor, you’ll be required to attend a ‘probate venue’ to swear an oath  which will accompany the forms. This is usually a solicitor’s office and there will be charge to pay.  The charge is at the solicitor’s discretion and anywhere between £5-10 is not unusual.

The Probate Registry may have queries on the forms submitted which you (or your solicitor) will need to deal with. Once the Probate Registry are satisfied with everything, a grant of representation will be sent out. If you have several banks and other institutions to notify, it’s a good idea to request multiple copies when you submit your application.

It’s important to remember that when you’re administering an estate, all debts and expenses must be settled before the estate can be distributed.

As dad’s executor, I worked with his solicitor to obtain figures and values at the date of death. The solicitor applied for probate and we achieved this in about six months, enabling us to wind up dad’s estate (including a property sale) in about eighteen months.

I regret not having a proper discussion with dad about his estate, but suspect he wouldn’t have felt comfortable discussing this with me in detail. It’s something I urge others to do, though; you never know what’s around the corner –  so try and have the conversation before it’s too late.

Image credit

Avoiding conflict as joint executors

When someone dies, the person legally allowed to deal with the deceased’s estate is referred to as the executor. Often, just one will be appointed, but there can be more, and if there are, they are referred to as joint executors. It’s a role that can be challenging and time consuming.

When my mum passed away in 2007, she left my brother and I with a Will and list that contained details of her bank accounts, credit cards, insurance policies and a myriad of seemingly innocuous details. It ran to three pages and even contained instructions for her funeral (including who could and, more importantly, couldn’t attend!).

It took my brother and I a year to wind-up our mum’s estate, but we’d have been lost without her list. We’re the kind of siblings who get on and work very well together, but for others, joint executorship can result in a process that often fractures relationships.

If you’ve found yourself in the role of joint executor and fearful of the conflict that might arise, I’ve put together four guidelines that will help you through the process:

1. Keep in regular contact

Joint executors who don’t keep in regular contact risk drawing out the process and missing vital details. My brother and I would never have been able to wind-up our mum’s estate so efficiently if we hadn’t communicated regularly.

The administration of an estate requires planning and an eye for detail, but there are benefits of acting jointly with another executor; a second pair of eyes, another opinion and the emotional support of someone sharing the responsibility with you.

2. Only take out the grant of probate for one executor

The grant of probate is a legal document that gives an executor the authority to handle the deceased’s estate. If a joint executorship is in place, both executors can apply for the grant, but this doesn’t have to be the case.

If the prospect of you both being granted this responsibility feels too onerous or likely to result in conflict, it might be a better for just one person to take out the grant of probate.

3. Seek professional help

Dealing with a loved one’s estate can be stressful and emotional,  therefore seeking third party help may be the way forward if you foresee issues arising  between you and the other executor.

As joint executors, you can appoint a professional advisor (i.e. a solicitor) to deal with the estate. It will be that person’s job to act impartially, ensure all family members are kept informed and work towards a satisfactory conclusion in good time.

Before appointing a third party, make sure you conduct thorough research into their expertise, qualifications and suitability of the person that will handle the estate. Their fees should also be taken into account, and will be an expense of the estate.

4. If all else fails – remove an executor

No one wants to find themselves in this position, but if serious issues are encountered during a joint executorship, it is possible to have an executor removed.

Final thoughts

I’ve included the last option above to illustrate how vital it is that joint executors work together as best they can during the administration of an estate. At times like this, emotions will be running high, but as joint executors, you have a significant advantage – you have each other.

I wouldn’t have wanted to undertake the winding-up of my mum’s estate without the support of my brother, and if you’re lucky enough to have someone by your side during the process, grab the opportunity with both hands – it’ll ease the process and provide vital support during a very challenging time.

Image credit