'Help You to Help You' | By Lynch Solicitors Ltd

We have often written about Wills and their importance in setting your wishes. 

An Enduring Power of Attorney  (EPA) complements your Will.

An EPA will outline what happens should you become incapacitated and can no longer look after your affairs.

What is an Enduring Power of Attorney?
If someone becomes mentally incapacitated (for example, because of illness, disability, or a progressive degenerative illness), their assets and property are typically frozen. This means that family members who may wish to deal with the cost of your care will not have access to your bank accounts.

An Enduring Power of Attorney prevents this from happening – it is often called a Living Will'.

It can be a compelling document.  It significantly bypasses the hurdles and problems your family could face when dealing with your affairs should you become incapacitated.

It is a legally binding document that avoids the need to make someone a Ward of Court.

It appoints a named individual or individuals (usually a close family member) to look after both your personal and financial affairs.

It is essential to understand that an EPA is a two-step process, and the second step may never come to pass.   The EPA  will not go into effect unless or until you lose your ability to manage your affairs.

What Powers Does An Attorney Have?
When considering your EPA, and after you have decided on your Attorney, you must also consider the scope of the power you will give your Attorney.

There are usually three variations on the power you can give your Attorney:

Your financial and property affairs, or;
Your health and personal affairs, or;
All your affairs (financial, property, health & personal affairs).

You may give your Attorney as much or as little power as you choose, for example:

What to do with your house or investment properties
Where will you live
Whom will you live with
Your diet and dress

Other very personal decisions directly affect you and your future care.
It may be advisable to nominate another person you would like the Attorney to consult with so that the Attorney can take that person's views into account.

It is also a good idea to nominate backup Attorneys.

Financial & Property Affairs
A general power grants your Attorney free rein to deal with your assets in whichever way they choose, subject to the actions being in your "best interests".

It would be best if you also remembered that, at present, once registered, your Attorney will have little or no supervision.

How Many Attorneys Can I Have?
You may choose one Attorney or more than one.

If you choose more than one, you can specify how they make decisions:

Jointly - that is, they must all act together and cannot act separately, or
Jointly and severally - they can act together but also work individually if they wish.

Can An Attorney's Registration Be Refused?
An application may be refused if:

The Power created by the document is no longer valid
The Donor (you) is not mentally incapacitated or not capable of becoming mentally incapacitated
The Attorney is not a suitable person to fulfil the role
Fraud or undue influence was used to induce the Donor (you) to create the power
Is There Any Restriction on Whom I Can Appoint?
An Enduring Power of Attorney may be granted to individuals or trust corporations but may not be given to:

People under the age of 18
Bankrupts
People convicted of offences involving fraud or dishonesty
People disqualified under the Companies Acts
An individual or trust corporation who owns a nursing home in which you live or an employee or agent of the owner, unless that person is your spouse, civil partner, child or sibling.
Many reasons might justify you making an Enduring Power of Attorney.

You may have a family history of mental illness, Alzheimer's, or dementia.  You may be involved in an accident or have an illness that will leave you unable to look after yourself.

However, the most obvious reason is that we do not know what lies ahead.

Afterthought
If you don't have an EPA, you will have no one to carry out your wishes by your wishes. If you are doing an EPA, you should also take the opportunity to review your Will. When doing both, we would also advise that you look at all future planning needs for you and your family.

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