Whilst we all hope that we never need to deal with a situation where we or a loved one have lost the ability to manage our financial affairs, it is sensible to guard against this eventuality by preparing an Enduring Power of Attorney. Equally, you may find yourself in a position where a loved one is no longer able to manage their affairs but has failed to guard against this. In those circumstances, there will be no option but to apply to the court for a Receivership in order to appoint a Receiver to manage their affairs.
We strongly recommend that you provide for the possibility by appointing in advance a trusted adviser, friend or family member as your attorney under an Enduring Power of Attorney. You can appoint more than one person if you wish. The appointment does not have to come into effect immediately, as you can stipulate that it shall be of no effect unless your attorney has reason to believe that you are, or are becoming, mentally incapable of managing your affairs. Fortunately, many Enduring Powers of Attorney never do come into effect as the person making the appointment remains capable of managing his/her affairs for life. It is nevertheless a sensible step, however, to appoint attorney(s) now as a precaution against future possibilities.
Our team is able to take clear, concise instructions from you as to your wishes and to use these to create a suitable Enduring Power of Attorney to protect your position in the future. We are able to offer home visits if required. If you are in the unfortunate position that it is too late to prepare an EPA for someone, please contact us and we would be happy to discuss the Receivership process with you.
Enduring Power of Attorney FAQs
What is an enduring power of attorney?
An Enduring Power of Attorney is document which permits a person to deal with someone else’s affairs on their behalf. They are often used when a person is unavailable to deal with their financial affairs or where someone has lost mental capacity.
What is the difference between a Will and a power of attorney?
A power of attorney is designed to allow you to delegate your financial affairs to another person whilst you are still alive, whereas a Will will only take effect at the point you pass away.
Do I need legal assistance?
It is not a requirement that you obtain legal advice in preparing a power of attorney, but we would always advise that you consult an advocate, especially if your circumstances are particularly complex.
Who can you appoint as an attorney?
You can appoint a friend, relative or professional provided they are over the age of 18. We would usually recommend two attorneys are appointed so there is some protection from an attorney abusing their position.
When does an Enduring Power of Attorney need to be registered?
If an attorney has reason to believe that the donor is becoming mentally incapable, an application should be made to register the Enduring Power of Attorney. If someone has started to lose capacity and does not have an Enduring Power of Attorney, one cannot be created and other options will need to be considered.
Can I still manage someone else's affairs even if they don't have an Enduring Power of Attorney to register?
The court has the power to appoint someone close to the person who has lost capacity to act as a mental health receiver on their behalf. However, the cost of a receivership is often greater than an Enduring Power of Attorney, so it is best to make an Enduring Power of Attorney before mental capacity is lost, especially as this will allow the donor’s wishes to be accounted for.