What is an Enduring Power of Attorney and why should I have one?

What is an Enduring Power of Attorney and why should I have one?

You may have heard the phrase Enduring Power of Attorney but you may not know exactly what it is.

An Enduring Power of Attorney enables you to choose a person (called “an Attorney”) to manage your property and affairs in the event of your becoming mentally incapable of doing so.

As a society, we are living longer and unfortunately this means that the chances of a person encountering mental capacity issues become greater. As a firm, we encounter more and more people coming in to speak to us about creating an Enduring Power of Attorney.

If you decide to create an Enduring Power of Attorney, firstly you will have to think about who your attorneys are going to be. Most people appoint 2 attorneys (although you may appoint only one if you so wish). Alternatively, people often appoint one attorney and one substitute attorney in the case that the first attorney is unable to act.

You also have to appoint 2 notice parties. Before an Attorney can register the Enduring Power of Attorney giving them power over your property and affairs, they must first notify the notice parties. So the notice parties act as a kind of safety net, as the the notice parties have the opportunity to object to the registration of the Enduring Power of Attorney, for example, if they are of the belief that the person in question is not sufficiently incapacitated to merit registration.

If you are married, your spouse has to be one of the attorneys or one of the notice parties.

You will also need to get a certificate from a doctor before you create the Enduring Power of Attorney, to confirm that you have sufficient capacity as at that point in time.

In terms of the powers you give to your attorneys, you may give them a general power in regard to all of your property and affairs. If you do so the attorney’s can do most things as if they were you, such as deal with your money or property, or for instance sell your house.

If you do not want your attorneys to have such wide powers, you can include any restrictions you like. For example you can include a restriction that your attorney may not sell your house or withdraw money from a certain bank account.

You may authorise your attorneys to take personal care decisions on your behalf, for example where you should live or with whom you should live. You could also include a provision that a certain person be consulted as to what your best interests are.

What’s not included in the powers is the power to make decisions regarding medical treatment. This will be covered by the Assisted Decision Making Capacity Act which has not yet come into force. When it does it will replace the existing system regarding the Enduring Powers of Attorney.