Powers of Attorney

The question is often asked, ‘What is the difference between a Power of Attorney and an Enduring Power of Attorney?’

We are all aware that Powers of Attorney exist and many will have taken advantage of these to allow family, friends or a Legal Representative to act on one’s behalf. Such Powers automatically end should you become ill or incapacitated.

The Enduring Power of Attorney

An Enduring Power of Attorney (EPA) is a legal document that allows a person to appoint another person or organisation to take care of things for you for the rest of their life.

Why should you have one?

If, because of accident or illness a person becomes unable to look after their own affairs, having an EPA allows the appointed Attorney (trustee) to immediately begin to look after their affairs.

This gives a person the opportunity to say what they want to happen in regards to personal welfare and the management of their affairs and property. Anyone over the age of 18 years or anyone, no matter of age, who has been married has the right to make an Enduring Power of Attorney.

Separate documents can be drawn up allowing different people to manage separate aspects of one’s affairs. This is allowed because it is recognised that different skills are required to look after personal matters such as health and welfare, than are required to manage financial affairs.

What authority is handed over?

An Enduring Power of Attorney may give the attorney authority to manage all or a specific part of the property. It is up to the individual to decide how and when the attorney is to act when the document is prepared.

Attorneys, nominated under Personal Care and Welfare EPA’s have limited powers. These relate strictly to care and welfare.

When does an EPA come into force?

Until a person becomes incapable of handling their own affairs they continue to do things for themselves.

An EPA comes into effect when dictated by the person concerned, this can be immediately, even if they are still capable of taking care of things for themselves, in such a circumstance the attorney must still work under that persons directions. An EPA can also be used as a last resort with it coming into effect only when one becomes incapable of managing one’s own affairs.

When does a Personal Care and Welfare EPA begin?

In every case, the named attorney has no power to act unless the circumstances, such as incapability, as written in the EPA come into being. Only one person at a time can be appointed to act as Attorney and this person need not have any special qualifications.

An attorney in this situation must be an individual, a Trustee Corporation can not be nominated to be Personal Care and Welfare Attorney.

Legal Requirements

An EPA must be in the form set out in Protection of Personal and Property Rights Act 1988, and it must be signed before a witness other than the appointed Attorney.

The appointed Attorney must be a trustee organisation or a person aged at least 20 who is not a bankrupt or subject to orders under the Act.

An Enduring Power of Attorney can be arranged through a Lawyer or any Trustee Corporation. Like house insurance, it must be set before there is a need to use it, otherwise an expensive court process is necessary.