Enduring Powers of Attorney: What are they and why should you have them? 16 Apr 2018

Have you ever wondered what happens to your affairs when you lose the capacity to handle them yourself? We live in a world of uncertainty, and it is important that you are prepared for whatever challenges might come your way. One way you can be prepared is by appointing an Attorney for your property or personal care and welfare by way of Enduring Power of Attorney.

 

What is an Enduring Power of Attorney?

 

There are two types of Enduring Powers of Attorney – an Enduring Power of Attorney in relation to Personal Care and Welfare, and an Enduring Power of Attorney in relation to Property. An Enduring Power of Attorney grants a person (or people) of your choice powers over your personal care and welfare or your property. This can be the same person for either personal and property matters, or separate people, depending on what you want. In exercising their powers, they have a fiduciary duty to act in your best interest always and are required to encourage you to act on your own behalf as much as you can.

Unlike an ordinary power of attorney, an enduring power of attorney does not cease to have effect once the ‘donor’ suffers from mental incapacity.

While a property power of attorney can be activated while you still hold mental capacity, a personal care and welfare power of attorney cannot be activated until you have lost mental capacity, and there is a higher threshold for incapacity.

So why have Enduring Powers of Attorney?

 

It is a good idea to have Enduring Powers of Attorney because you never know what life is to going to throw your way. A time may come where you can no longer speak for yourself or make crucial decisions on your own behalf, and having Enduring Powers of Attorney is a way of protecting yourself and your affairs.

It grants powers to a person you trust to ensure that your personal care or property affairs are properly looked after. It is really important that the attorney to whom you grant powers is trustworthy and someone who you are confident will manage your affairs in your best interest.

When you appoint an attorney for property or personal care, you can choose how specific their powers are, and you can also choose to have successor (ie back-up) attorneys or you can specify the names of people who you want either or both your attorney and successor attorney to consult when making any decisions. You can also even specify who you want to assess your mental capacity, as long as their scope of practice includes assessing mental capacity.

Everyone, regardless of age, should make an Enduring Power of Attorney while they still hold the capacity to do so.

 

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation.  Please contact Pat Rotherham – patrotherham@parryfield.com or Ken Lord – kenlord@parryfield.com at Parry Field Lawyers (348-8480).