On occasions the heirs we trace are elderly, prompting concern amongst their families that their financial affairs are looked after properly.

We would always recommend you to contact a solicitor or financial adviser whenever you are concerned about the financial future of elderly relatives.

If you are concerned about the future mental health of an heir, it may be appropriate for them to appoint an attorney under an an Enduring Power of Attorney.

Enduring Power of Attorney Act 1985

A person can be appointed by an Enduring Power of Attorney to act for anyone (in our case, for an heir) at any time, knowing that when they can no longer make important decisions, the attorney will continue to act on their behalf. The attorney will act in the heir's affairs as they would wish, even if the heir has become mentally impaired. The power of attorney may give either a general power or limit that power to certain matters.

Conditions

• It is usually decided that the enduring power of attorney should come into effect only when the donor (the heir) can no longer decide things for him/herself.

• The attorney must register his/her authority with the Court of Protection. Until the authority has been registered, the attorney may only act in a limited capacity in the donor's personal interest, such as by paying nursing home fees, rent, or utility bills.

• In addition the attorney must tell at least three of the nearest living relatives that he/she has the authority to act for the donor.

It is sometimes appropriate to get the donor's doctor to witness the appointment, to have evidence that it was made whilst the donor was still capable of taking decisions. This is especially important if there is the possibility that someone may later question the appointment of the enduring power of attorney.

Peace of Mind

The process is relatively straightforward and ensures that the heir's affairs will be looked after by someone acting in their interests. In addition the court of protection is a helpful body and will see that an attorney does not do anything unnecessary or selfish with the property or assets of the person they are protecting. It will allow him/her all reasonable expenses, but unless the attorney is a professional i.e. a solicitor or an accountant, he/she is not allowed to make a profit.

Applying

To implement an Enduring Power an Attorney, the prospective Attorney should apply to the Court of Protection (Public Trustees) for receivership of a person's affairs:

EPA Team,
Public Guardianship Office
Archway Tower
2 Junction Rd
London N19 5SZ

Telephone Number: 020 7664 7300

Please note

It must be emphasised that neither Fraser & Fraser, nor the staff at the Court of Protection and the Public Guardianship Office are permitted to advise as to whether the creation of an Enduring Power of Attorney is appropriate for any particular case, or whether an Enduring Power of Attorney is valid, or as to how the Act rules or regulates affairs in any particular circumstance. Individual legal advice should be obtained from a solicitor or legal advice centre.