Legal Information Centre

07 February 2008 by Mary Heaney

Legal flaw in power of attorney rules exposed

Lawyers may have offered people incorrect advice about power of attorney rules, it has been claimed.
Many people who took steps to protect their affairs or those of elderly relatives if they become incapable might have broken the law by mistake, a leading newspaper has reported.


The Times reported that those who rushed to take out an old-style power of attorney before the law changed on October 1st 2007 might have breached rules as a result of confusion over legal requirements.


It is thought that many solicitors mistakenly told members of the public that it was only necessary for them to sign the documents to obtain an enduring power of attorney (EPA).


However, the Office of Public Guardianship has reportedly clarified the rules and stated that, for the documents to be valid, both by the person who is granting the power and the person who would take it on needed to sign before the cut off date.


As a result, many at risk individuals who previously thought they were protected could face the cost of reapplying under the new system.


Wills, trusts and estates lawyer Roger Peters, head of the private client practice at Gordon Dadds, explained to the paper: "We were conscious of this issue at the time. The point is arguable, so the confusion is understandable and I don't believe solicitors could be held to be negligent.


"But we took the view here that forms should be signed both by the donor and the attorney." 


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