Enduring Power of Attorney – What is it and do I need one?
Most people are aware and understand the benefits and necessity for having an up to date and valid Will to manage your affairs after death. What some people aren’t aware of or familiar with are measures to make provision for management of your affairs (mainly your financial affairs) whilst you are alive, however not capable of managing them independently.
An Enduring Power of Attorney (“EPA”) is a legal document that allows you to formally appoint a friend, relative or professional to be your Attorney. It is another tool to control future as best you can. We as your Solicitor will keep this document safely along with your Will. An Enduring Power of Attorney allows you to appoint someone to act as your Attorney to manage your affairs if you become unable to manage them yourself or communicate your wishes, possibly as a result of aging, mental illness or physical incapacity.
It is important to remember that mental incapacity can happen to anyone at any time e.g. by accident or illness.
Enduring Power Of Attorney & Restrictions
The Enduring Power of Attorney can include restrictions if you prefer not to allow an Attorney unrestricted management of your affairs, however we generally advise to allow your appointed Attorney(s) to have general authority to manage all of your affairs, if you are unable to. The document allows you to have control of your future, which we all know is uncertain. It allows you to control who will manage your affairs if a time comes when you are personally unable to.
The Attorney(s) would be able to manage your assets and property, and handle any expenses and outgoings you have, including nursing home fees if this is applicable. An Enduring Power of Attorney is not effective until it is registered with the High Court and registration is never applied for until such times as your Attorney(s) believe that you are no longer capable of managing your own affairs. As a safeguard, notice must be served on you and your next of kin prior to the Court registering the document.
You can cancel or amend the Enduring Power of Attorney at any time while you are mentally capable. For example if the Attorney you have chosen dies or becomes incapable or no longer wishes to act on your behalf you will need to appoint a new Attorney. It is also possible that the Enduring Power of Attorney may never need registered, however it is like an insurance policy in that we hope it is never needed but is available should your circumstances require it. An added benefit of an Enduring Power of Attorney is that it is a more inexpensive way of managing whatever the future may hold for your health.
Should you lose mental capacity without having an Enduring Power of Attorney drafted with your Solicitor, then your family, friends or next of kin may have to make an application to the High Court to be made a ‘Controller’ of your affairs and a ‘Controllership Order’ will be issued. As this is an application to the High Court it is a more expensive and lengthy process and is best to be avoided. It also means you lose the control over who may make such an application and be appointed a ‘Controller’ and manage your affairs. Should you wish to discuss drafting an Enduring Power of Attorney with P.A.Duffy and Company Solicitors, please contact our office to make an appointment.