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Enduring Powers of Attorney – What you should consider

With advances in medicine resulting in people living generally longer, there is a greater need for robust procedures to be in place to protect us as we age. A common concern is what happens when we are no longer able to make our own decisions. Loss of capacity brought on by illness, especially in old age, is not at all uncommon and Enduring Powers of Attorney are a key safeguard to protect our wishes in relation to our care and property. The Enduring Power of Attorney differs from a general power of attorney in that it continues or “endures” after a person loses mental capacity.

There are two types of Enduring Powers of Attorney: one in relation to personal care and welfare, and one in relation to property.

An Enduring Power of Attorney in relation to Personal Care and Welfare appoints one person as your attorney to make decisions about your care – such as where you are to live and whether you are properly cared for. This Enduring Power of Attorney is only activated when you are certified as having lost mental capacity by a qualified health provider.

An Enduring Power of Attorney in relation to Property allows you to appoint one or more attorneys to manage and make decisions about your property. Property doesn’t just cover your house but includes your finances and investments. You decide whether the attorney/s may act while you have mental capacity or only if you lose mental capacity and you can add other conditions.

Choosing your attorney is one of the most important steps you take in setting up an Enduring Power of Attorney.

For a Personal Care and Welfare Attorney you may want to select someone who knows you well and who you can rely on to respond to your preferences. They are required to encourage you to act on your behalf and participate in the community as much as possible, so having your attorney living close by is helpful.

For your Property Attorney you should choose someone able to handle money matters easily and responsibly. There is a statutory requirement that your attorney maintain financial records and make these records available to any person you have stipulated should receive them.

The role of attorney is one of great responsibility and it carries with it legal obligations. It is something you should review periodically to ensure you have the people you continue to have trust in, and, are able to act for you. While you have mental capacity, you can revoke the appointment of an attorney by providing them with notice in writing.

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Harmans Lawyers
At Harmans we have experience in dealing with trust law and estate planning and can help you to ensure your Trust operates as it should Give Phillipa Shaw a call on 03 352 2293 to arrange an appointment to discuss your situation.

2 comments

  1. My mother is the donor for an EPA which she signed in 1998. She made me, her eldest daughter, her attorney. Now she is 96 and probably going into care. She has handled all her financial affairs, latterly with some help, up until now. Although she is still mentally capable, she tires very easily and can’t hear very well. She is also losing her eyesight. Therefore she is happy for me to take over her finances.
    Do I have to do anything else to activate the EPA other than provide a copy for the rest home, and presumably for her bank, and for any other agency requiring it?
    Thank you for your help.

    • Eve Williams

      Hi Liz,
      It will depend on what was decided when the EPA was created. Either the financial and property attorney was to be effective only if your mother was mentally incapable. In that case, you will need to ask for a medical certificate from a GP or health practitioner before taking action. Alternatively, it may have been agreed that the EPA was effective when it was signed which avoids the need for a medical certificate. It would be best to get in contact with the lawyer or trustee company you used to set up your EPA to get specific advice about your situation.

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