Enduring Powers of Attorney

An Enduring Power of Attorney is a legal document signed by you to provide a mechanism whereby authority can be given to a trusted person, such as a family member, to manage a your financial affairs when you can no longer do so.

An Enduring power of Attorney is sometimes referred to as a ‘living will’. Without an Enduring Power of Attorney if you become mentally incapacitated because of illness, disability or degenerative disease (not physical incapacity) your assets are usually frozen and cannot be used by anyone to pay bills on your behalf or to cover the cost of your care. In such a situation an application to court would be required and the process known as a Ward of Court Application is expensive and time consuming.

Both an Enduring Power of Attorney and Ward of Court Application relate to the appointment of another person to handle your affairs. The major difference however is that with the Enduring Power of Attorney procedure you get to choose who will handle your affairs. This is very important when it comes to your financial affairs and decision making regarding your care.

An Enduring Power of Attorney, while signed when you are in good health, does not become enforceable until you are medically certified as mentally incapacitated.

The person (or persons) you nominate to look after your affairs is known as your Attorney. There are no restrictions on who you can choose as an Attorney however, it is important that you choose someone trustworthy and capable, as this person or persons will be running your affairs on your behalf. You can choose how much decision making power you give but bear in mind that the less power they have the greater the risk that they will not be able to manage your affairs properly. It is generally recommended that you appoint two Attorneys and you can decide if all decisions need to be agreed on by both or if they can act independently of each other. The Attorneys are authorised by you to make personal care decisions for you such as where you live and what rehabilitation you should get and so on. The Attorney can also make financial decisions for you such as whether any property is sold etc.

At the time of creating the Enduring Power of Attorney a medical certificate from your Doctor will be required as well as a statement from you that you fully understand the implications of signing the Power of Attorney, a statement from your Solicitor that she/he is satisfied that you understood the effect of creating an Enduring Power of Attorney and certain people such as family members must be notified that you have signed an Enduring Power of Attorney.

The Attorney’s power ceases on your passing and your assets are then dealt with under the terms of your will. The Executors you have named in your will then assume the role of collecting and distributing your estate in accordance with the terms of your will.

Please contact Michelle Gilbourne for a consultation.