Enduring power of attorney covering property

What should go into an enduring power of attorney covering property?

The person or trustee company appointed under the enduring power of attorney should know what the donor owns, where everything is kept, and what the donor’s exact wishes are.

The donor should:

list all his or her main assets. These include things such as the donor’s house, car, bank accounts, stocks, shares or other investments, life insurance policies, furniture and jewellery. The donor should also make a note of any money owed to him or her or any other assets which have been lent out.
list his or her debts or other liabilities.
advise the attorney where all the donor’s important documents are kept, such as title deeds, birth or marriage certificates, share certificates and insurance policies.
decide what things he or she might want the attorney to do on his or her behalf. These can be as limited or as wide as the donor chooses.
specify in the power of attorney when he or she wants the enduring power of attorney to come into effect. This may be immediately, or only if and when the donor loses legal capacity and becomes unable to personally take care of his or her property.

What powers does a property attorney have?

(Protection of Personal and Property Rights Act 1988, s.97)

It is up to the donor to decide how much power the property attorney will have. The attorney can have a general power (for example, to act generally in all matters relating to the donor’s affairs and property), or a specific one (for example, over a car).

The donor can also impose specific conditions and restrictions on the power of attorney, for example, limiting a power to borrow only up to a certain limit.

What responsibilities does a property attorney have?

The attorney has a relationship of trust with the donor which the attorney cannot abuse. This means that the attorney has an obligation not to use money for their own benefit, invest it unwisely, or act in a way not authorised by the power of attorney. The standards required of an attorney are high. Attorneys should keep the donor regularly and fully informed on the attorney’s actions. The attorney has a duty to keep proper records of all transactions enterred into while the donor lacks capacity.

Can the court review a property attorney’s decisions and performance?

(Protection of Personal and Property Rights Act 1988, ss.102, 103)

Yes. The court has the power to monitor an attorney’s performance, and, if necessary, to vary the terms of the enduring power of attorney. The court will only do this if an application is made by the donor or by some other person who has the leave of the court to apply.

Can a property attorney ask for directions from the court?

(Protection of Personal and Property Rights Act 1988, ss.101, 102)

A property attorney can apply to the court for directions about how to exercise their powers. The attorney might do this if they are finding it difficult to carry out some of the donor’s instructions and the donor lacks the capacity to give further instructions.