What is an Enduring Power of Attorney?
An Enduring Power of Attorney can prevent all of your assets and property in your sole name from being frozen in the event you become unable to deal with your affairs. This will only occur when you become mentally incapacitated and are no longer able.
You must nominate an attorney to make certain decisions on your behalf but must always act in your best interests. This could be your spouse, family member or a close friend you trust.
They should think in accordance with what you would have been likely to do and the attorney must consult family members and carers in making these decisions. However, an Enduring Power of Attorney does not give anyone a legal right to make decisions about your healthcare. This can only be achieved through an Advance Healthcare Directive.
Are There Any Safe Guards?
Because the Enduring Power of Attorney involves the transfer of considerable powers from you to another person, several legal safeguards protect you from abuses. The procedure for executing the Enduring Power of Attorney is complex; you have to use a solicitor and a doctor. The enduring power can only be effective when specific procedures have been gone through. The courts have a general supervisory role in the implementation of the power.
Termination of an Enduring Power of Attorney
An Enduring Power of Attorney ceases on your death. However, there are other circumstances in which an Enduring Power of Attorney ceases to have an effect. For example, where a spouse or civil partner is the attorney, the Enduring Power of Attorney would end if the couple divorces.
Creating an Enduring Power of Attorney
An Enduring Power of Attorney is a legal document; therefore, it is advisable to seek guidance from a solicitor before creation. A statement from a doctor confirming your mental capacity at the time of creation is also required. A solicitor must explain the consequences to you and sign a statement, confirming that you understood the effect of the creation of the power.
At least two people must be notified of the creation of the power. At least one must be your blood relative, and if your spouse is not an attorney, the spouse must be named as a Notice Party.
Revocation of an Enduring Power of Attorney
An Enduring Power of Attorney can be revoked before an application for registration is made. Once the Enduring Power of Attorney has been registered, it may only be withdrawn through an application to the High Court.
Does the Capacity Bill Effect Enduring Power of Attorney
The Assisted Decision-Making (Capacity) Act 2015 provides new arrangements for those wishing to make an Enduring Power of Attorney. When the 2015 Act is commenced, no new Enduring Power of Attorneys will be created under the 1996 Act. However, Enduring Powers of Attorney correctly made under the 1996 Act will remain valid.
The next time you update your Will with your solicitor, I suggest discussing a Power of Attorney, as it might be important as we all get older.