Enduring Powers of Attorney
A Power of Attorney gives someone the authority to act on your behalf. Prior to the Protection of Personal and Property Rights Act 1988 an attorney could not act on your behalf if you lacked mental capacity to give instructions to that attorney. Enduring Powers of Attorney are intended to overcome this problem. There are two types of Enduring Powers of Attorney. One is in respect of property and the other is in respect of personal care and welfare.
An Enduring Power of Attorney in respect of property gives another person power to act on your behalf with respect to any property you own. Property includes not only land but bank accounts, shares etc.
An Enduring Power of Attorney can be expressed to take effect only if you become mentally incapable, or it can be expressed to have immediate effect, and continue to operate if you become mentally incapable.
You can give your attorney a general authority to act on your behalf, or you can limit it to specific circumstances. You can allow your attorney to deal with the whole of your property or only the property you specify. You can also make it subject to specified conditions and restrictions.
Like a will, it can be cancelled by you at any time as long as you understand what you are doing.
Personal Care and Welfare
You can also make an Enduring Power of Attorney in relation to your personal care and welfare. This gives your attorney power to act on your behalf to make decisions regarding your personal care, in the event of illness, age or mental incapacity.
You can appoint only one person to act as your attorney in relation to personal care and welfare at any one time. The appointment only operates when you become mentally incapable — that is if you do not have the ability to understand the nature of decisions with respect to matters relating to your personal care and welfare. You can authorise your attorney to act on your behalf generally or only in relation to specific matters.
An Enduring Power of Attorney in relation to personal care and welfare is limited to certain matters. For instance your attorney cannot authorise any decisions in relation to marriage, or refuse to give consent to certain medical treatment.
Why an Enduring Power of Attorney?
Both types of Enduring Powers of Attorney ensure that you and your assets will be looked after if you are unable to make decisions yourself.
If you become mentally incapable and you have not made an Enduring Power of Attorney then your family or friends would need to apply to the Family Court before they could manage your affairs. This can be expensive and time consuming and most importantly, the person the Court appoints may not be who you would otherwise have chosen.
Who can be an Attorney?
Any individual can be appointed as an attorney as long as he or she is over 20 years of age and not bankrupt. An attorney does not have to be a lawyer. A trustee corporation cannot be appointed as an attorney for personal care and welfare.
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