What happens if you do not have Enduring Powers of Attorney?
We all know (or should know) that a valid Will is important to have. A Will comes into effect on your death, appoints who will administer your estate, deals with your assets and liabilities and if valid, prevents an intestacy.
Equally important and while you are alive are documents called Enduring Powers of Attorney.
What is an Enduring Power of Attorney?
Under the Protection of Personal and Property Rights Act 1988 (“the Act”) Part 9 of the Act sets out what Enduring Powers of Attorney are.
In summary, these are documents that enable you (whilst you have capacity) as the donor to give your attorney/s the right to deal with two matters – your Property and your Personal Care and Welfare. These rights and responsibilities are not automatic. They need to be put into place, and you can include certain terms and conditions under which your attorney will need to abide by.
They are “Enduring” because they endure past your mental incapacity as opposed to a general Power of Attorney which does not.
For Property – you can appoint one or more attorneys (including successor attorneys) to deal with your property (bank accounts, insurance, real property) while you have capacity and to continue when you lose capacity.
For Personal Care and Welfare – you appoint one attorney (with a successor, if any) to make important health care decisions on your behalf when you have lost capacity. These are very important rights and responsibilities that you give to another person(s).
Your appointment to an attorney should be to someone you know and trust as they will have a great deal of responsibility and authority when acting on your behalf.
What happens if I have lost capacity without an Enduring Power of Attorney being in place?
If you have lost capacity, you are unable to then put the Enduring Powers of Attorney in place. Where this becomes very important is for example, you need to sell your home and enter a retirement village and do not have capacity and do not have Enduring Powers of Attorney in place.
A member of your family, a friend or social worker will need to apply for an order to administer your property and/or an order for appointment of a welfare guardian for your personal care and welfare matters with the Family Court.
This is an involved process which includes certification by a GP or suitably qualified doctor, documents being completed to be filed in the Family Court and having an independent solicitor appointed for the person the subject of the order. The person(s) who the order is granted to can only act in accordance with the order and only for the timeframe(s) specified.
This can cause a great amount of stress if the Enduring Power of Attorney documents are not in place, action is needed but a Court application is required.
What to do
In order to avoid undue stress, cost and going to Court, Enduring Powers of Attorney should be put in place. This also gives you the power to appoint who you want to act for you.
To find out more contact our team who will be happy to assist you.