No-one likes to think of a time when they will be incapable of dealing with their own affairs. However, with an aging population and a growing instance of diseases such as Alzheimer’s, it has become a consideration for more and more people. Care home fees are a worry for many older people and in today’s financial climate it is likely that the health trusts will become increasingly diligent in ensuring that their patients are paying their fair share. Legislation allows the Trusts to ignore or even undo transactions that have been done solely to avoid care home fees.
Enduring Powers of Attorney
An Enduring Power of Attorney (EPOA) allows the maker (known as “the Donor”) to appoint someone to look after their financial affairs in the event that they become incapable of doing so.
If the Attorney who has been appointed believes the Donor has become incapable, he or she is under a duty to apply to the court for the EPOA to be registered. This application will involve notifying the Donor and his or her next-of-kin, in the form prescribed by the legislation, of the intention to have the EPOA registered, and inviting objections. If there are no objections, the EPOA will be registered by the court and the Attorney can deal directly with banks and other financial institutions on the Donor’s behalf. If there are objections there will normally be a court case to settle the matter.
If someone who does not have an Enduring Power of Attorney in place becomes incapable of dealing with his or her affairs, it is necessary for the next-of-kin to make an application to the court for a Controllership. This involves obtaining medical evidence of the person’s mental health, filling out a complicated form showing the person’s assets, obtaining character references for the proposed Controller and setting out proposals for the future care of the patient. The next-of-kin of the patient are then notified of the application and objections are invited.
In the case of a Controllership, rather than an Enduring Power of Attorney, the court will understandably take a more active role in overseeing and monitoring the financial affairs going forward. After all, the patient did not actively seek to appoint the Controller when capable of doing so. Once appointed, the Controller is expected to account for the court once a year for all the income and expenditure on behalf of the patient. The court also expects Controllers to take security out to cover the assets the controller holds. If the Controller wishes to take any steps out of the ordinary course of his or her duties (for example, selling or renting the patient’s property) an application must be made to court to allow this. There is a yearly fee payable and a fee for each and every application that is made.
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