What are enduring powers of attorney, and why do you need to consider them?
Legal considerations around end-of-life care, estate management, and general management of affairs are complex topics with far reaching consequences. This is why we believe that understanding each of them is an important step in putting your affairs in order.
While most people only think of wills and estates when putting their affairs in order, enduring powers of attorney are an important aspect to consider.
Enduring powers of attorney give a specified person the legal ability to make decisions for you and on your behalf should the time come when you are no longer able to do so effectively.
The two kinds of enduring power of attorney
In order to be as specific as possible within the law there are two different kinds of power of attorney, each bestowing a different range of responsibilities on to the nominated person
Power of Attorney: Property
Your attorney for property takes on the responsibility for looking after your assets. This includes your finances as well as your home and any other properties you may own.
Enduring powers of attorney for property management can be activated as soon as they are ratified, even if you still have capacity, or on a loss of capacity clause.
The most compelling reason to have a power of attorney for property while you still have capacity is for them to make large decisions regarding your property while you are temporarily unable to – for example if you are overseas and unable to sign documents or undergoing medical treatment that does not affect your capacity but does prevent you from engaging in business dealings.
Power of Attorney: Personal Care and Welfare
On the other hand, your attorney for personal care and welfare does not have responsibility over your financial state but is responsible for looking after you as a person. This includes medical care and treatment decisions.
This type of power of attorney is only activated if you are deemed to have lost the mental capacity to do so.
What is considered loss of capacity?
Determining loss of capacity is a medical decision made by a doctor after completing an assessment. If the person assessed indicates a loss of capacity, then the factor will certify the assessment as such and the family or carer of the person has grounds to pursue an enduring power of attorney.
In general, though, someone can be deemed to have lost capacity once they no longer have the ability to understand the consequences of their decisions or effectively communicate in order to make those decisions.
In some cases, the nominated power of attorney of personal care can make some decisions regarding your care if they have grounds to demonstrate that you have no longer got the capacity to do so. Large decisions require a doctor’s certificate and assessment.
Are there limits on what an enduring power of attorney can do?
Yes. Regardless of the type of enduring power of attorney someone has they cannot adopt any children in your name, enter you into a marriage, or deny life saving medical treatment.
Additionally, you can enter specific restrictions into the agreement. For example, you could sign over the power of attorney to enable a trusted person to manage your rental properties but maintain total control over your residential home.
Why is setting up enduring powers of attorney important?
Simply, to save difficulty in the long run. Should you lose capacity without enduring powers of attorney in place, it can add a complex legal process to an already trying time for your family. These powers of attorney don’t only affect large decisions like buying or selling houses – attempting to cancel a loved one’s internet connection when they go in to care or pay a bill without them can be surprisingly hard. Your relative may need to pursue a court order to allow them to make simple decisions on your behalf, which can take a lot of time and money.
Who can authorize enduring powers of attorney?
Only legal entities such as a lawyer, authorized persons in within the Public Trust, or a legal executive can put enduring powers of attorney in place.
It is vital that you receive professional advice regarding enduring powers of attorney, so get in touch with a trusted and experienced team today to discuss this important aspect of life.
