Expertise

Enduring Power of Attorney

Enduring Powers of Attorney are powerful and binding legal documents that retain their validity (or “endure”) even when you are no longer capable of handling your own affairs.

You can revoke them at any time (unless you lack the legal mental capacity to do so). They are automatically revoked on your death.

What is a Financial Enduring Power of Attorney?

A Financial Enduring Power of Attorney gives one or more people wide powers to act as your attorneys to manage your personal and legal affairs in circumstances where you are unable to do so yourself. If you choose, it can also be used while you are still able to look after yourself.

Your attorney can purchase and sell your properties, control your investments and assets, collect your income, operate your bank accounts, organise your income tax or pension requirements and in general manage your assets. You can set limits on the powers you give to your attorney. You can appoint one person or two or more people to be your attorneys.

If you appoint two or more, you can choose to have either one or the other to act, or you can state that both must act jointly on your behalf or the majority of attorneys can act. You can nominate when and under what circumstances your Financial Power of Attorney will start.

A “Certificate of Witness” must be prepared and witnessed by at least one person acting as a medical practitioner or who is authorised to witness affidavits (such as a solicitor). This certifies your capacity as the principal (the person making the Power of Attorney).

To have an effective document, your attorneys must also sign a “Statement of Acceptance” in front of a witness and give undertakings as to their conduct and must keep accurate records of all dealings and transactions they make while acting as your attorneys.

What is a Personal Enduring Power of Attorney?

A Personal Enduring Power of Attorney enables you to appoint an attorney to make ‘lifestyle’ decisions on your behalf after you have lost capacity to make those decisions yourself.

You may choose to specify exactly the type of decisions your attorney can or cannot make, and any other factors your attorney should take into account in making those decisions. If you do not clearly state the powers your attorney is to have, and the time comes when you are no longer able to make decisions for yourself, your attorney will have the same powers as if he or she were your parent and you were the child.

To have an effective document, your attorneys must also sign a “Statement of Acceptance” in front of a witness and give undertakings as to their conduct.