Many solicitors have benefited from guidance issued in 1996 by the Law Society's mental health and disability committee on enduring powers of attorney (EPAs).

These guidelines proved to be immensely popular in helping solicitors to advise clients who wish to draw up an EPA, and in particular to avoid common mistakes and pitfalls which may cause the EPA to be invalid or registration to be refused by the Public Trust Office.

Such mistakes have proved costly for solicitors, who may be liable for the additional costs of applying to the Court of Protection for a receivership order if it is too late for any defects in the EPA to be rectified.The Law Society's guidelines for solicitors on EPAs have recently been extensively revised and updated and all solicitors involved in this area of law are advised to consult them.

The new version has taken account of comments made by practitioners on the need for clarification, and also covers new issues and areas of concern.

It also includes a checklist of 'dos and don'ts' to help solicitors remember to follow the correct procedures and comply with specified time limits.The mental health and disability committee is keen to ensure that solicitors take an active role in safeguarding their clients, particularly those who are vulnerable through old age or disability, from the risks of abuse or exploitation.

Following discussions with the Master of the Court of Protection and the EPA team at the Public Trust Office, a new section in the guidelines draws attention to the risk of financial abuse by untrustworthy attorneys.

The Master has estimated that financial abuse occurs in around 10% to 15% of cases of registered EPAs, and even more often with unregistered powers.

Throughout the new guidelines, possible risk areas are identified and safeguards against abuse are suggested, which solicitors should discuss with their clients when taking instructions to make an EPA.

Solicitors are advised to produce their own written information for clients on both the benefits and the risks of EPAs, whether in a published brochure or individual correspondence.The guidelines stress that the donor is the client to whom the solicitor owes his or her professional duty, not the proposed attorney or other third party who may purport to give instructions on behalf of the donor.

Solicitors must therefore first satisfy themselves, on the balance of probabilities, that the donor has the required mental capacity to make an EPA.

A summary of the relevant test of capacity laid down in Re K, Re F [1988] Ch 310 is set out in an appendix to the guidelines, while further details can be found in the joint Law Society/British Medical Association publication Assessment of Mental Capacity: Guidance for Doctors and Lawyers (1995).

If there is any doubt about the donor's capacity, a medical opinion should be obtained, and where appropriate, the doc tor asked to witness the donor's signature on the EPA.Detailed advice is given in the guidelines to assist solicitors to take full and careful instructions from the donor, in particular on the choice of a suitable attorney(s), the extent of powers to be delegated under the EPA, deciding when the EPA is to come into effect, and possible limitations on the attorney's authority to make gifts of the donor's assets.

All of these matters require careful attention by the donor before making the EPA in order to minimise the risk of abuse.In particular, the guidelines suggest that solicitors should consider:-- advising clients to appoint more than one attorney, since sole attorneys have greater opportunities for abuse;-- discouraging the use of an unregistered EPA as an ordinary power of attorney.

This can be done by including instructions to this effect in the document itself or lodging the power with the solicitor, with instructions that it is not to be used until registration is necessary;-- advising clients to specify in the EPA the circumstances when the attorney may make gifts of their money or property, since improper gifting is the most widespread form of abuse;-- advising clients to notify other family members that they have made an EPA, who they have chosen as their attorney(s) and how they intend the power to be used.

This can ensure that the EPA is not used prematurely or improperly, and may also reduce the risk of conflict between family members; and-- offering an auditing service to clients, requiring attorneys to produce to the solicitor an account of their actions every 12 months.

If the attorney failed to render a satisfactory account, the solicitor could report any concerns to the Public Trust Office or in serious cases, apply for registration of the power to be cancelled on grounds of the attorney's unsuitability.The guidelines also suggest courses of action to be taken where solicitors suspect that an attorney may be misusing an EPA or acting dishonestly.A section of the guidelines offers advice to solicitors who themselves act as attorneys or who are appointed to deal with the general management of the donor's affairs.

It is recommended that solicitors' current terms and conditions of business (including charging rates and frequency of billing) be discussed with and approved by the donor at the time of granting the power.

It is also suggested that a professional charging clause be included in the power itself for the avoidance of doubt.

Solicitors dealing with investment business will need to be authorised under the Financial Services Act 1986 and will need to take account of the Solicitors' Investment Business Rules 1995.EPAs remain an excellent tool to enable people to prepare in advance for a time when they may no longer be able to manage their financial affairs themselves.

Donors can choose to delegate their affairs to the person(s) they most trust, and do not have to give up control until the need arises.

Solicitors are well placed to ensure that clients make informed and considered decisions, so that they can take advantage of the benefits of EPAs, while also safeguarding against the risks.Solicitors can obtain a copy of the guidelines by sending a stamped (to the value of 50p) or DX-addressed A4 sized envelope to The Policy Directorate, The Law Society, 113 Chancery Lane, London WC2A 1PL (DX 56 London/Chancery Lane).