EPA no longer valid

[Goldring]

Some 15 years ago my father took out an EPA with me as the attorney. He signed the document and he was advised by the solicitor that it was not necessary for me to sign at that time. The solicitor placed the EPA in his strongroom for safekeeping.
Now that I wish to use the EPA, the soliciter tells me that it is not valid because I have not signed it. I understand that this is because the EPA was superseded by a Lasting Power of Attorney in 2007.
My question is: As my father paid for the solicitor to prepare the EPA should the solicitor have had a duty of care to make us aware of any changes to legislation that affected the validity of the document?

[Buenchico]

There are a few people (mainly in the works of Conan Doyle and in BBC costume dramas, but possibly in current real life as well) who pay a solicitor a retainer to act as their 'family solicitor' and thus to keep their affairs under review. Everyone else employs a solicitor solely for specific tasks (e.g to draw up a will or LPA, or to store such documents).

The former arrangement might place an obligation upon a solicitor to inform his client of any relevant changes in the law. The latter does not.

Chris

[dzug2]

I'm wondering if the original advice not to sign was valid?

[tonywiltshire]

The enduring power of attorney (before 2007) should have been signed by you at the time and then registered, even if it was not required to be used for some time. At registration any problems with the EPA would have been flagged up, the fact that the EPA was replaced by the lasting power of attorney in 2007 does not make the EPA not valid it would have been valid if it had been correctly completed.
I think you are owed some answers from your solicitor.

[themas]

EPAs (unlike LPAs) did not have to be registered at the time they were completed - only when they came to be needed.

You could ask the solicitor to give you the document (he has no right to keep it). What you do with it then is up to you, but I know what I would do if placed in this situation due to no fault of my own.

I'm fairly sure the advice not to sign at the time was wrong, or at least irresponsible, but a complaint & claim against the solicitor won't help you if your father is now not mentally competent to enter into an LPA.

[tonywiltshire]

I think you will find an Enduring power of attorney is valid whether it has been registered or not in the court of protection, but not if completed incorrectly. I believe it to be good practice to register the EPA at the time of completion even if not required to be used at that time, as any problem would be flagged up before it was needed. Have a word with your solicitor.

[stevepett]

Unlike an LPA, you can't register an EPA unless the donor is or is becoming unable to manage their own finances through loss of mental capacity.

The advice not to sign was lunacy, and if you can prove it, the solicitor will be liable for any loss caused, which could be massive if the Court of Protection appoint a professional deputy.

If you father still has the ability to make decisions, try to get BOTH types of Lasting Power of Attorney organised sharpish. Media URL: http://www.lpauk.com
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