Cosgrove Gaynard Solicitors

What is an Enduring Power of Attorney ?

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If for some reason you were unable to take care of yourself personally and financially what would happen?

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If something should happen and you have not appointed an Attorney it may cause serious problems for your next of kin who may have to make you a ward of court to deal with your assets. This is a complicated, expensive and sometimes lengthy procedure and whilst your next of kin are waiting for this to complete your bills cannot be paid nor can your affairs be looked after.

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Under the Powers of Attorney Act 1996 it is possible for you to make provision for these situations. An Enduring Power of Attorney (EPA) enables you to grant authority to a named person or persons (your Attorney) to act on your behalf and deal with your property and financial affairs in the event that you become unable to do so.

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The Enduring Power of Attorney does not actually come into effect until such time as you are unable to act for yourself and have become or are becoming mentally incapable. No one likes to consider the possibility of their own mental incapacity however by signing an Enduring Power of Attorney you can ensure that your personal welfare and affairs are looked after by the persons you have chosen yourself.

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PROCEDURE

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Your solicitor prepares the necessary documentation which includes a statement from your doctor confirming you were of sound mind when making the EPA, a statement from your solicitor confirming you understood the legal effect of the document, written acceptance by your attorney or attorneys to act and written notification to two parties of the existence of the EPA. It is wise to store your Enduring Power of Attorney with your solicitor until such time as it may be required.

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RESTRICTIONS

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An Enduring Power of Attorney can contain restrictions and the powers granted to your Attorney can be tailored to your own requirements. The 1996 Powers of Attorney Act provides that an Enduring Power of Attorney  may give the Attorney power to act on the Donor’s behalf in relation to any one or more of the following:-

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All or a specified part of the Donor’s property

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All or a specified part of the Donor’s business or financial affairs

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To make personal care decisions affecting the Donor

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To make appropriate gifts to any of the Donor’s relations or friends or favourite charity of the Donor

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To make any such powers subject to conditions and restrictions.

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PERSONAL CARE

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Personal care decisions must be made in the Donor’s best interest and can include the following decisions:-

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Where the donor should live

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With whom the Donor should live;

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Whom the Donor should see and not see

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What training or rehabilitation the Donor should get

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The Donor’s diet and dress

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Who may inspect the Donor’s personal papers

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What housing, Social Welfare or other benefits the Donor needs.

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However, the Donor is under no legal obligation to give the Attorney power to make any personal care decisions and can limit the Attorney’s role to the business or financial affairs only of the Donor.

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In summary an Enduring Power of Attorney is strongly recommended for anyone who wants to minimise the legal problems their next of kin may face should they become mentally incapacitated in the future.

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