Incapacity and Enduring Powers of Attorney

Incapacity & Enduring Powers of AttorneyIf you become incapacitated and unable to look after your own affairs, the office of the Public Trustee is responsible for looking after your finances and the office of the Public Guardian is responsible for making decisions about your personal affairs (for example, where you live) unless you have an Enduring Power of Attorney.

Neither office will usually interfere, where an incapacitated person is being properly looked after by their family. Sometimes (often as a result of family disputes) they will get involved and override the wishes of carers. The only way to ensure that does not occur, is to have an Enduring Power of Attorney.

You can appoint an Enduring Attorney to make financial, health and personal decisions on your behalf and attend to your affairs, if you are incapacitated and unable to do so yourself. You can also authorise that attorney to sign documents and make decisions for you whilst you remain able, but are travelling or uncontactable.

If you lose the capacity to make decisions for yourself, your carer is likely to face difficulties if they have not been appointed as your Enduring Attorney. For example, an insurance company may only be willing to pay out the proceeds of a Total and Permanent Disability policy to the Public Trustee. Significant difficulties will arise in selling a house or other assets to fund a place in a nursing home or other permanent care facility.

A person appointed as an Enduring Attorney must not make decisions that favour their own interests, over those of the person who granted them that power. This can cause problems, where it is intended that the Enduring Attorney of someone with dementia will receive property under their Will. Say that Attorney receives a house under the Will, but the nursing home wants that house sold to fund a place in the home. As dementia sufferers can survive for decades, careful planning may be required to ensure that the intended result is achieved.

Having an appropriate Enduring Power of Attorney may be more important to you than the terms of your Will. Imagine appointing the wrong person and waking up from a coma to see what decisions they have made about your financial affairs. Or worse, you had no Enduring Attorney, nobody could sort something out for you and the bank has stepped in …

If you would like to obtain advice in relation to preparing an Enduring Power of Attorney, or your role as someone’s appointed Enduring Attorney, please contact us to arrange an appointment.

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