Putting your personal affairs in order is really important. One frequently overlooked set of documents that are vital, especially as you age, are Enduring Powers of Attorney (“EPOAs”). These are documents where you appoint an attorney(s) and successor attorney(s) who are able to act on your behalf in the event that you no longer able to make your own decisions (a “loss of mental capacity”). EPOAs are extremely useful documents, particularly as you age.
The first type of EPOA is in respect of Property. This covers your real property and other financial matters. This EPOA can be made effective immediately, so that your attorney can assist you in the event of any physical conditions which may make it difficult for you to sign on your own behalf. Alternatively it can be made effective only upon a loss of mental capacity.
The second type of EPOA is in respect of Personal Care and Welfare. This covers personal decisions such as medical matters and decisions about your living arrangements. This EPOA can only be activated by a doctor certifying that you no longer have mental capacity.
The secret to putting a set of EPOAs in place is that you must have mental capacity at the time of signing your EPOAs. The lawyer witnessing your signing must not have any doubts as to your mental capacity. For lawyers, it is best practice to obtain a doctor’s confirmation of mental capacity prior to signing.
You may be wondering what happens if a doctor advises that you do not have mental capacity and you still need to appoint an attorney. This is when we are able to help you by applying to the Court for orders under the Protection of Personal and Property Rights Act 1988. This is known as a “PPPR application”. The Family Court will grant orders for a Property Manager and a Welfare Guardian. This involves a letter in a prescribed form from a geriatrician as to your mental incapacity, an application by the family member(s) who wish to apply to be your Property Manager and Welfare Guardian, the written consent from all affected parties and an affidavit from the applicant as to all of the circumstances. This is always an urgent matter but unfortunately there are lengthy delays with any Court applications. There is also a great deal of expense involved.
We are seeing many more clients than ever before who require PPPR applications. This is no doubt due to our aging population. However, we have also noticed that rest care facilities and medical facilities who may previously have accepted an informal “power of attorney” arrangement are now insisting on sighting a legally enforceable EPOA. If a set of EPOAs are not in place, then the family of an incapacitated person has no choice but to apply to the Court for PPPR orders.
It is very much more simple to have a set of EPOAs put in place well before you or your family have any thoughts that they are needed. You will save yourself and your loved ones a great deal of stress and expense.
Perhaps you should consider making 2024 the year when you get your personal affairs in order. Contact us to put a set of Enduring Powers of Attorney in place for you. You will give yourself and your family peace of mind that no matter what the future holds, you have done what you can to avoid unnecessary stress and worry in the event that you are unable to make decisions for yourself anymore.
