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WHAT IS AN ENDURING POWER OF ATTORNEY?

 

Unlike an ordinary power of attorney, an enduring power of attorney (“EPOA”) allows the attorney to act for you if you become mentally incapable.

However you must arrange an EPOA before you become mentally incapable, otherwise the power will be invalid.  If you are already incapacitated, you are deemed not capable of granting a valid power of attorney.  For a definition  of “mentally incapable” see Section 94 of the Protection of Personal and Property Rights Act 1988 (the PPPR Act).

If you are already incapacitated, those who want to care for you and make legal decisions for you would need to apply for court orders under the PPPR Act. This takes longer and is more expensive than setting up an EPOA, and the person appointment may be someone you would not have chosen.

There are two types of EPOA.  One gives the attorney the right to manage your financial affairs and deal with your property.  The other gives the attorney the right to make legal decisions about your personal care and welfare.  It is recommended that you arrange both.

These can be given to the same person or to different people, but even if you give them both to the same persona, you need to grant each power specifically and separately, though this can be done in the same document.

In both cases you can authorise the attorney to act in respect of all of your affairs or only some of them, in which case you must specify which ones.   You can also set conditions and restrictions about how your property should be dealt with or what you would like to happen to you.  It is you as donor and not the prospective attorney who has the right to decide just what the powers should encompass.

If you want steps to be taken to determine that you are no longer able to manage your own affairs, write these into your instructions.

Remember that creating an EPOA gives considerable power over your property, affairs and welfare.  You should seek legal advice about the implications of this and you should make sure that the person you choose as attorney is someone you can trust to act in your best interests as, at some stage, you may be relying on them absolutely.  It is sensible to choose your own lawyer to talk to – do not feel that you have to go to your prospective attorney’s lawyer.



 
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