An enduring power of attorney is a legal document that appoints someone (or more than one person) – the ‘attorney’ – to act on your behalf to make decisions about financial and/or personal matters if you are unable to do so yourself.
This power kicks in once you become incapacitated (as opposed to a general power of attorney, which only exists while you are in full control), which is why the word ‘enduring’ is tacked onto the front, since it continues even when the person loses their capacity to make their own decisions. This attorney’s decisions are the same as if you made them yourself. You must be aged 18 or over to have the decision-making capacity to appoint an enduring power of attorney.
How to appoint an enduring power of attorney
- Choose your person or people
- Decide what powers to give them (financial and/or personal) and when that power should start (you may also want to look into enduring power of guardianship where applicable)
- Complete the form and sign with witnesses
- Copy and keep in a safe place or multiple safe places
- If desired, cancel the document and end the agreement
Financial means matters relating to financial matters and property, while personal matters include your personal and lifestyle matters, including healthcare and consent for medical treatments, where you live, and what support services you access.
What can’t an enduring power of attorney do?
An enduring power of attorney cannot do anything outside of their power or that has/has not been expressly instructed by you. For example, if your power of attorney has been given power to decide personal matters, they can consent to medical treatment, but they cannot refuse medical treatment (you need an advanced care directive for this).
The enduring power of attorney also may not do the following on your behalf:
- Vote
- Make decisions about caring for or wellbeing of children
- Make or change a will
- Make or change an enduring power
- Consent to marriage or sex or divorce
- Adopt a child or enter into surrogacy arrangements
- Manage the estate of the principal on their death
- Consent to illegal acts
What an enduring power of attorney can do if authorised:
- Be paid
- Provide for the needs of the principal’s dependents
- Enter financial transactions where there may be a conflict – legal advice may be useful here
How to chose your enduring power of attorney
This person should be someone you trust to manage your affairs, but they also must be eligible, and agree to this role. They must also be over the age of 18, not insolvent under administration (or undischarged bankrupt), not a care worker, a health provider, or an accommodation provider for the principal.
There are a lot of intricate rules for enduring power of attorney, and it’s best to have guidance on these issues from your legal representation. Vanessa Ash and Associates can provide this assistance.
Call Vanessa Ash today for a chat about your estate planning needs.