Opinion

How many of you have a Will?  I would hope at least half of you reading this article are nodding or making some vaguely affirmative noise[i]. 

If I asked: “How many of you have an Enduring Power of Attorney?”, I’d be surprised if more than 10% of you were nodding.  The rest of you will probably fall into one or more of the following categories: (i) you don’t know what an Enduring Power of Attorney is; (ii) you think you’re too young to need one; (iii) you don’t know how to go about getting one; (iv) it’s too complicated/expensive to think about.

For those of you who don’t know what an Enduring Power of Attorney is…

If due to an accident, illness, or aging you are no longer “wholly competent to manage your affairs in relation to [your] property” or “lack the capacity” to “make”, “understand” or “foresee the consequences” of decisions about matters relating to your personal care and welfare, it is extremely important that you have put in place some form of arrangement under which someone else can manage your affairs for you.

Step up Enduring Powers of Attorney!

If you don’t have an Enduring Power of Attorney (also known as EPAs), you must apply to the court for an order to enable someone (usually family members, friends, your doctor) to act as your attorney. Such applications are costly and there is always a risk that the person the Court chooses may not be the person you would have chosen, or that person may not act in the way you would have wished.

How does an EPA work?

Essentially, an EPA is a document under which you appoint another person to make decisions on your behalf.

There are two types of EPA:

• AN EPA in relation to property; and
• An EPA in relation to personal care and welfare.

An EPA in relation to property, authorises your attorney to act in relation to all, or a specified part, of your assets.  An EPA in relation to personal care and welfare, authorises your attorney to act in relation to your health and living arrangements.

For those of you who think you’re too young to need one…

If you’re nearing retirement age, you need to start thinking seriously about EPAs.    Alzheimers and Dementia are predominantly age (60+) related conditions and they tend not to discriminate. 

If you’re younger than 50 and don’t work in a particularly dangerous environment, then you probably don’t need to worry about EPAs just yet.  But remember, anyone, of any age, can suffer a head injury which could lead to temporary or permanent mental incapacity.

For those of you who don’t know how to go about getting one…

First, decide who you want to be your attorney(s).  You need to have trust and confidence in the person you appoint.  For a personal care and welfare EPA, due to the nature of the decisions involved, it is usual for the attorney to be a family member or friend.  The attorney must be over the age of 20 and not bankrupt.

Second, go and see your solicitor (or if you don’t have a solicitor, contact me).   Prior to entering into an EPA, you must obtain independent advice to ensure you understand the implications of what you are doing.

For those of you who think it’s too complicated/expensive to think about…

Is it complicated? No!  Follow the steps above and you can’t go wrong. 

Is it expensive?  In a recent article, I wrote that “Certainty, compared to niggling doubt, is priceless”.  Once you have your EPAs, you don’t have to think about it anymore.  You can relax in the knowledge that if the worst happens, there will be one less thing for your family to worry about. Bottom line, while there is a cost, that cost is far less than the cost of a court application.

As much as none of us like to think about something happening to a friend, family member or to us which would necessitate an EPA, it is always worth considering your options, just in case.

Richard

The content of this article is necessarily general and readers should seek specific advice on particular matters and not rely solely on this article.