A question we are often asked when people attend for appointments on estate planning is how can they ensure they can make it as easy as possible for those who may have to take care of them later in life.
In recent times people have become much more aware of the importance of Enduring Powers of Attorney particularly in relation to banking, sale of property to cover health costs and signing documentation for the Nursing Home Support Scheme.
An Enduring Power of Attorney is a legal document put in place during your lifetime to ensure that your wishes are followed should you become incapable of dealing with your own affairs later in life.
The important thing to consider from the beginning is capacity. Capacity determines whether you can execute legal documents and take care of your own affairs. If you become mentally incapacitated then you will no longer be in a position to deal with your assets and without an Enduring Power of Attorney, where you have appointed the people you wish to act on your behalf, it can become very difficult to the point where assets are frozen and a court application has to be made to appoint a committee over same.
This is called a Ward of Court application and we can of course advise on same separately.
The benefit of having your Enduring Power of Attorney in place is that you have already made your choice as to whom you wish to act on your behalf. You can include instructions on how they are to be dealt with and the process for your Attorneys to be put in place is a paper application as opposed to a court application thereby keeping costs down.
An Enduring Power of Attorney is a document drawn up to appoint people to take care of
your affairs during your lifetime should you become incapacitated or unable to deal with
same. It can give very wide powers to the appointed attorneys and for that reason we must take detailed instructions before it can be completed.
The Power of Attorney will appoint two people to take care of your affairs which can include
your financial affairs and personal care decisions based on your instructions. You can give wide or limited powers so it is worth taking time to consider this.
The document will also ask for one or two alternate attorneys who will act should any of the
first appointed people become unable to complete their duties.
Finally there must be two notice parties. These are people who must be notified when the
Power of Attorney has been signed. They will also be notified at the later stage should it become necessary to register the Enduring Power of Attorney in the High Court thereby transferring all rights to your attorneys.
Your Notice Parties are important as they have the power of veto if they feel you are still capable of dealing with your affairs. If you are married, the one of the notice parties must be your spouse. After that you may chose whomever you wish. If your spouse is not capable of acting then there are rules on who else may act and we can of course advise you fully on same in our meeting.
Please note the signing of the document does not take away any rights from you straight away.
You will still have full rights to deal with your own assets or make any decisions in relation to your own care.
It is your instructions should you become incapacitated at a later date.
The Attorneys cannot make any decisions in relation to your assets until the Enduring Power
of Attorney (EPA) is registered in the High Court, Wards of Court Office. That is, in order
for them to take over dealing with your affairs they must register the EPA by lodging, together with the required application documentation, a medical certificate confirming that you are no longer in a position to deal with them yourself.
As detailed above, the attorneys must also notify the notice parties that they are going ahead
with the registration. This is sort of a fail-safe, a mechanism to avoid the attorneys going
ahead without notice of another party.
We understand the idea of putting such a document in place can be rather daunting when planning for a time in the future few of us want to consider, however if you wish to discuss same, we would highly recommend making an appointment so we can fully explain all your options and help you through the process of putting your Enduring Power of Attorney in place.
Out of office hours appointments available.
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