Enduring Power of Attorney
An enduring power of attorney is a document which you complete with your solicitor in which you name an individual or individuals to take charge of your affairs in the event of your becoming incapacitated and unable to manage your own affairs. There is provision in the legislation, for you to may wish to limit the authority which you give to the attorney(s) e.g. only to make decisions concerning your health care or your place of residence.
Why complete an enduring power of attorney?
If you die and have a will in place, although there will be sadness, at least the legal situation is relatively uncomplicated.
If you do not die but, whether due to an accident, a sudden illness or a gradual decline in mental health become incapable of managing your own affairs, the legal situation is different.
If you have already executed an enduring power of attorney the person you have designated will be able to take over the management of your affairs.
If you have not executed of an enduring power of attorney prior to becoming incapacitated, your next-of-kin must make an application to the High Court for you to be made a ward of court so that they can manage your affairs, access bank accounts, give directions about your personal and health care. An application for ward ship is stressful and time-consuming as well as being complicated and expensive.
Naming next of kin in your will as an executor has no legal force whilst you are still alive and if you are incapacitated but still alive, an executor is powerless to make any decisions directing your affairs.
In a nutshell
An enduring power of attorney appoints individuals whom you choose to manage your affairs in the event of your becoming unable to do so. The document lies dormant unless you become incapable of managing your affairs. The major advantage is that an enduring power of attorney permits continuity in the management of your personal affairs following a relatively simple and stress-free legal process.
Despite the relative simplicity of the process there also are safeguards built in to avoid abuse of the enduring power of attorney legislation (1) before you are allowed to complete an enduring power of attorney you must be certified as mentally competent (2) before an enduring power of attorney can come into force you must (a) be certified by a medical practitioner as being incapable of managing your own affairs and (b) the two individuals whom you have named must be informed that an enduring power of attorney concerning you is about to come into force. This means that these individuals, if they suspect any abuse of process, may then object to the power of attorney coming into force.
If you become incapable of managing your own affairs but have not executed an enduring power of attorney the only process available to your next of kin is to apply to have you made a ward of the High Court which is stressful, time-consuming and expensive.