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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