What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document that allows you to appoint a specific individual or individuals to look after your personal, medical, and financial affairs in the event that you lose your mental capacity at some point in the future.
Is an Enduring Power of Attorney different from a Power of Attorney?
Yes. An Enduring Power of Attorney only becomes relevant if and when you lose capacity. Whereas a regular Power of Attorney will be used, here and now, while you have capacity. A regular Power of Attorney ceases to have effect if and when you lose capacity.
What happens if I lose my mental capacity without making an Enduring Power of Attorney?
If you lose mental capacity through illness or accident without having made a valid Enduring Power of Attorney, an individual or individuals can be appointed to become your committee. This is done through the Wards of Court procedure, and involves an application to the High Court.
So why have an Enduring Power of Attorney?
Making an Enduring Power of Attorney is less time consuming and expensive than the Ward of Court process. It gives the Donor, the person creating the Enduring Power of Attorney, control, in allowing them to select and appoint a specific person of their own choosing to make decisions on their behalf in the event that they lose capacity. Compared to a High Court Judge selecting and approving your committee, under the Ward of Court procedure. It is advisable to put in place an Enduring Power of Attorney while you are in good health and have the capacity to make decisions about whom to appoint. Just like your Will, you should review your Enduring Power of Attorney on a regular basis and make sure that it is fit for purpose.
What is the effect of creating an Enduring Power of Attorney?
The Enduring Power of Attorney only comes into force when it has been registered. This occurs once there is reason to believe that you have become mentally incapacitated. You are considered mentally incapacitated when you become incapable of managing your own affairs. A medical certificate confirming this must accompany the application for registration. You can, if mentally capable, revoke the Enduring Power of Attorney before an application is made to register it. The Enduring Power of Attorney ceases on the death of the donor.
What decisions will be made on my behalf?
That is entirely up to you. You can give your Attorney very broad powers or alternatively very tight, narrow specific powers. This will depend on your specific circumstances and should be discussed with your Solicitor. The types of decisions that are usually addressed are those in relation to your finances, estate, and care. This may include where you live, what to do with your house or investment property, what medical care you should receive, payment of your expenses, and financial matters to name a few.
If you have any additional questions or are considering putting an Enduring Power of Attorney in place, contact our office for a detailed overview of the process and how we can help you with it.