Power of Attorney question

I have a POA over my uncle's affairs, as he has disappeared into the twilight world of accelerated dementia. The onset was so rapid that we only just managed to get him to sign off, to the solicitors' satisfaction that he was still sufficiently compos mentis to know what he was doing.

I was given no instructions about what receipts needed to be retained. It helps that I am the old boy's only heir, bar a handful of small legacies, and the eventual estate will be below the IHT radar, so there will be no disagreeable arguments or repercussions when he dies.

In short, my advice would be to retain documentation for anything substantial, but don't worry unduly about keeping every last receipt. Remember: de minimis non curat lex!

My wife and I (but I did all the work!) had Enduring POA for my father-in-law during his last few years. He was (just about) compus mentis, so we didn't need to register the POA with the Court of Protection. [This was a few years ago, and the rules have changed since then, so I'm not sure which rules apply to you].

In our case, I was able to do virtually everything which f-i-l could have done for himself - including operating his bank accounts, selling his house when he came to live with us, making gifts on his behalf (including giving away sufficient amounts within the rules to keep him below the IHT threshold).

When he died, we obtained probate and administered the estate - which was very straightforward because, apart from a couple of very small legacies, my wife was the sole beneficiary.

In your case, I would approach it from the point of view of considering what will happen when the Mother ultimately dies. I presume she has made a will? Who are the executors - is your wife one of them? In any event, you'll need probate in order to sell the house (if not done prior to the death) and in order to get access to the investments. [POA dies with her

- so you can't use that after she has died].

Whether your wife applies for probate herself, or whether someone else (e.g. a solicitor) does it, she will have to provide the bulk of the information for the various forms. An IHT205 form will be required even if no IHT is due.

I suggest that you look at the Probate Information at

and follow the links to find the necessary forms and guidance notes. If you go through the motions of filling in the forms, this will tell you what information will be needed - which should help you to decide what records you need to be keeping now. Assuming that the brother will ultimately get a share of the estate, you also need to make sure that you can account for any significant expenditure which would reduce the value of the estate - and thus his share.

Hope that helps!

BTW, we bought a DIY POA kit from W H Smiths, and that has a helpful booklet - including a section about what Attorneys can and can't do. I could scan the relevant bits of that and email them to you if that would help. If you wish me to do that, please send me a private message (the email address in the header DOES work) confirming your email address.

POA obtained several years ago, similarly, when the M.I.L. could sign the documents (with solicitor present IIRC)

Well, unfortunately, I don't think there is a will, certainly not that we know of. There is only my wife and her Brother. It is likely the wife will apply for probate and the Brother will just take his half of what there is (simplistic assumptions at this point!) as he won't want the responsibility of dealing with any of it.

It does, many thanks

That's very kind of you, thank-you - I have sent a separate e-mail.

Regards Steve

Thanks for the reply, I kind of figured that small irrelevant sums would not be an issue. I understand it only *might* be a problem if the brother contents the expenses etc when she dies.

Unless your m-i-l is *completely* mentally incompetent, MS being primarily physical rather than mental, I suggest that you draw up a Will now, which she might sign in the event of any short period of respite and lucidity. Although the intestacy laws are straightforward -

- your wife might get lumbered with the otherwise unjustifiable expense of a solicitor if the brother-in-law proves anything less than 100% compliant.

The Will could be utterly simple. One clause would appoint the Executors (your wife and, possibly, b-i-l). The next would decree that the estate be divided in presumably equal shares. Signed by the m-i-l and witnessed by care home manager or friends whom you bring in for the purpose.

Avoid professionals if at all possible, as they have a vested interest in delay . Okay, they *CAN* have; admittedly not all solicitors, accountants and bank managers are self-serving, grasping and unprincipled scoundrels, just as not all balls are round. I received probate on my father's fairly complicated estate (which included such problems as his Lloyds membership) within 3 months, and distributed it inside another 3. Conversely, a friend is in the hands of a country solicitor who has still not got probate (on his mother's small and simple estate) after more than 2 years. His elder brother's the executor, but isn't man enough to face up to the lawyer. The estate is, inevitably, getting ever smaller!

Thanks for the replies regarding the will guys. Unfortunately, the MIL has long since been able to hold a pen, let alone sign anything. To make matters worse, she has recently been developing mild demential (apparently brought on by the MS, but I'm not sure.)

I think we will need to investigate whether a will was made and kept with the solicitor, and find out the best steps regarding getting one made if not (if this is possible now given her state)

If the M-i-L lacks mental capacity, you had better have a registered EPA or LPA, not just an ordinary POA, which would now be void.

If she is in a care home, what expenditure would you actually incur for her that would be small enough that you might want to consider not keeping the receipts? To the extent that things don't justify receipts, I would suggest establishing a cash float, which is kept physically separate from your money. Even then, business would be expected to account for every transaction on that.

Assuming a registered LPA or EPA, you would probably only get audited if a relative or friend challenged your suitability to be an attorney.

If not, I believe that, once the court has awarded you any control of the money, annual audits are needed, which is why getting an LPA in time is very important, especially if you are not a husband/wife/partner, who might have access to a joint account.

The current position is that you should try to do what she would have done, if she had had the mental capacity to do so, and had the same fact available. In addition you should try and consult her at whatever residual level of mental capacity she has. That may mean, very simple, high level policy questions.

Gifts would probably be judged by a combination of the sort of gifts she made when she had capacity, adjusted for inflation, and limited by what she could afford to give.

If she has capacity, you can only do what she gives informed consent for you to do.

I hesitate to take issue, but it was/is my clear understanding that an existing 'old style' POA remains valid. It is simply that all POAs registered since date X (October 2007, if memory serves) must take the new (and inevitably far more expensive) EPA/LPA form. Thus I have a new EPA for the uncle, but an old POA for my mother.

POAs ceases on lack of mental capacity

EPAs must be registered on loss of mental capacity, and new ones are no longer possible

LPAs must be registered before they can be used at all.

Whilst banks will normally ask you to register a POA with them, there is no legal requirement to register. Registration of EPAs and LPAs is with the government/courts.

Date X relates to the switch from EPAs to LPAs for new ones and it relates to when the document was created, not when it was registered.