Old AgeEnduring Powers of Attorney
Whenever a Will is put on foot we always advise the creation of an Enduring Power of Attorney. It is especially important that an elderly person has in place an Enduring Power of Attorney. We highlight the following features of Enduring Powers of Attorney:
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document in which you appoint one or more individuals to manage your affairs on your behalf. They do not have to take control of your affairs immediately but by creating an Enduring Power of Attorney whilst you are fit and healthy you are ensuring that your affairs can be easily managed should you later become physically or mentally incapable of managing your own affairs. It is not possible to create an Enduring Power of Attorney when you have become mentally incapable of managing your own affairs.
Who Can I Appoint as my Attorney?
You can appoint one or more people and it is usual to appoint close family members. They could ultimately have total control over your assets and your Attorneys must therefore be people whom you trust to act in your best interests. If you have no close relatives or they live abroad it is possible to appoint a solicitor or accountant to act as your Attorney.
What Happens When I Become Mentally Incapable of Dealing With my Own Affairs?
If your Attorney thinks that you are becoming mentally incapable they must register the document appointing them as your Attorney with the Court of Protection (a government department) and confirm to the rest of your family that they are doing so. The Court of Protection will then register the Enduring Power of Attorney.
Examples of When an Enduring Power of Attorney is Useful
1. Gladys makes an Enduring Power of Attorney appointing her daughter as her Attorney, but continues to manage her own affairs. One winter she slips on the ice and breaks her wrist. She remains in hospital for several weeks and is unable to write due to her wrist. Her daughter as her Attorney is able to collect her pension and pay the electricity and telephone bill which arrive whilst Gladys is in hospital. When Gladys returns home and is able to write she takes back control of her affairs.
2. Bert makes an Enduring Power of Attorney appointing his son and daughter as his Attorneys. Several years later he develops Alzheimer's Disease and becomes incapable of managing his own affairs. He goes to live with his son who is able to deal with his affairs and manage his investments for him following registration of the Enduring Power of Attorney with the Court of Protection. When his son goes on holiday and Bert goes to stay with his daughter she can carry on dealing with Bert's affairs whilst her brother is away.
3. Ivy has a daughter who has emigrated to Australia. She makes an Enduring Power of Attorney appointing her solicitor as her Attorney. Ivy then has a stroke which leaves her very confused and unable to cope at home. She moves to a nursing home and her solicitor as her Attorney is able to manage her investments and affairs and ensure that the nursing home fees are paid. Ivy's daughter finds this reassuring as she is unable to manage her mother's affairs from Australia.
Court of Protection
If there is no Enduring Power of Attorney in place and a person becomes mentally incapable of managing their affairs, it will be necessary for someone to apply to the Court of Protection to be officially appointed to deal with that person's affairs. The applications may take several months during which time finances cannot be accessed and bills can remain unpaid. It can also be a relatively expensive process.
If you need to apply to the Court of Protection to be appointed to deal with the affairs of a relative we can assist you in dealing with the application.
The Court of Protection will not help if a person becomes physically disabled and has not created an Enduring Power of Attorney.
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