enduring
powers of attorney
Have
you considered how you or your family would cope if you were to suffer
from some accident or illness which deprived you of the mental capacity
to look after your own affairs?
With
advances in medical care, increasing life expectancy and increasing
property values there is a growing need for people to make arrangements
which can be brought into effect in the event of mental incapacity arising.
Under the Powers
of Attorney Act 1996 it is possible for you to make provision for these
situations.
I
can explain the formalities and arrange for you to sign the necessary
document now while you have the good health and the capacity to make
the decision as to the person or persons whom you would wish to look
after your affairs should the need arise.
If
a person loses mental capacity without having signed a valid Enduring
Power of Attorney then in order to manage the person's property and
affairs it is necessary to have such a person made a Ward of Court.
HERE
you will find a note of the preliminary information which I need in
order to prepare the required notices, the supporting certificates and
the form of Enduring Power of Attorney for signing.
The
following extract from the required statutory form
is a helpful summary of what the Powers of Attorney Act 1996 can do
for your security and peace of mind.
Effect
of creating enduring power: information for donor
3.
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. You may choose
one attorney or more than one. If you choose more than one, you must
decide whether they are to be able to act:
jointly (that is, they must all act together and cannot act separately),
or
jointly and severally (that is, they can all act together but they can
also act separately if they wish).
4. If you give your attorney(s) general power in relation to all your
property and affairs, they will be able to deal with your money or property
and may be able to sell your house.
5. If you do not want your attorney(s) to have such wide powers, you
can include any restrictions you like. For example, you can include
a restriction that your attorney(s) may not sell your house.
6. You may authorise the attorney(s) to take certain personal care decisions
on your behalf, e.g. deciding where you shall live. If you decide to
do so, you should indicate, the particular personal care decisions you
want to authorise. You should also name any person you would like the
attorney to consult so that the attorney can have regard to that person's
views as to your wishes and feelings and as to what would be in your
best interests.
7. Unless you put in a restriction preventing it, your attorney(s) will
be able to use any of your money or property to benefit themselves or
other people by doing what you yourself might be expected to do to provide
for their needs.
8. If you specifically authorise it, your attorney(s) will also be able
to use your money to make gifts, but only for reasonable amounts in
relation to the value of your money and property and subject to any
conditions or restrictions you may impose.
9. You may also appoint an attorney or attorney(s) to act in the event
that the original attorney is unable or unwilling to act.
10. You must give notice of the execution of the enduring power as soon
as practicable to at least two persons. None of them may be an attorney
under the power. At least one must be the donor's spouse, if living
with the donor. If the donor is unmarried, widowed or separated, notification
must be given to a child of the donor (if applicable) or otherwise to
any relative (i.e. parent, sibling, grandchild, widow/er of child, nephew
or niece). The prescribed form of notice is contained in the Third Schedule
to the Enduring Powers of Attorney Regulations, 1996.
11. Your attorney(s) can recover the out-of-pocket expenses of acting
as your attorney(s). You may provide for the attorney's remuneration
as well .
12. If your attorney(s) have reason in the future to believe that you
have become or are becoming mentally incapable of managing your affairs,
your attorney(s) must apply to have the enduring power registered in
the High Court. Once registered, an enduring power of attorney cannot
be revoked effectively unless the Court confirms the revocation. You
may revoke the power at any time before registration.
13. Before applying for registration of this power, your attorney(s)
must give written notice of intention to do so to you and to the persons
you notify of the execution of the enduring power. You and these persons
(if they are not then available, certain of your relatives) will be
able to object if you or they disagree with registration. The prescribed
form of notice is contained in the Fourth Schedule to the Enduring Powers
of Attorney Regulations, 1996.
Effect of accepting enduring power: information for attorney
14. If you have reason in the future to believe that the donor is, or
is becoming, mentally incapable of managing his or her property and
affairs, you must apply to have the enduring power registered in the
High Court. Before doing so you must give written notice of your intention
to the Registrar of Wards of Court and also to the donor and the persons
whom they donor has notified of the execution of the enduring power.
(If these persons are no longer available, notice must be given to certain
relatives, as specified in the Powers of Attorney Act, 1996.) The prescribed
form of the latter notice is contained in the Fourth Schedule to the
Enduring Powers of Attorney Regulations, 1996.
15. The enduring power will not come into force until it has been registered.
However, once you have applied for registration you may take action
under the power to maintain the donor and prevent loss to the donor's
estate and maintain yourself and other persons insofar as that is permitted
under section 6(4) of the Act. You may also make any personal care decisions
permitted under the power that cannot reasonably be deferred until the
application for registration has been determined.
16. Unless there is a restriction in the enduring power preventing it,
you may use the donor's money or other property for your benefit or
that of other people to the following extent but no further, that is
to say, by doing what the donor might be expected to do to provide for
your or their needs. You may not use the donor's money to make gifts
unless there is specific provision to that effect in the enduring power
and then only to persons related to or connected with the donor on birth
or marriage anniversaries or to charities to which the donor made or
might be expected to make gifts. The amounts of any such gifts are to
any restrictions in the enduring power and, in any event, may be only
for reasonable amounts in relation to the extent of the donor's assets.
17. You are obliged to keep adequate accounts of the donor's property
and affairs and to produce the accounting records to the Court if required.
18. In general, as an attorney you are in a fiduciary relationship with
the donor. You must use proper care in exercising on behalf of the donor
the authority given by the enduring power and you must act only within
its scope. In particular, you must observe any conditions or restrictions
imposed by the power and also the limits imposed by the Powers of Attorney
Act, 1996.
19. You may recover the out-of-pocket expenses of acting as attorney.
The enduring power may provide for remuneration for so acting.
20.
You may disclaim at any time up to registration of the power. Thereafter
you may do so only on notice to the donor and with the consent of the
High Court.
21. After the enduring power has been registered you should notify the
Registrar of Wards of Court if the donor dies or recovers.
