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PLAN FOR THE FUTURE – Why you need an Enduring Power of Attorney


By Barry McCaul, Partner at McGale Kelly & Co., Solicitors

I can’t stress enough just how vitally important it is that you set out your plans for the future as you never know if or when you will be involved in an accident or fall ill.

There may come a time when you are mentally incapable of managing your property and financial affairs, and will need someone to make very important decisions for you.

That is why it is so important to take action and formally appoint your spouse, a trusted friend, a relative or a professional to allow them to act on your behalf should you lose mental capacity.

The most common way of doing this is by signing an Enduring Power of Attorney (EPA), which enables you to choose a person (called “attorney”) to deal with your property and affairs.

Please take note, an EPA is not a Will.

It is important to remember that mental incapacity can happen to anyone at any time, for example, by accident or through illness.

For example, if you suffer a stroke, have an accident and suffer a brain injury, or in later life develop a cognitive illness such as dementia or Alzheimer’s and are unable to manage your own affairs, then with an EPA in place you will have the security of knowing you have someone you can trust already appointed to step in and act on your behalf.

The power you give to someone through the EPA only kicks in when you become mentally incapable but you can change that if you wanted to. You can also limit their power, so that they don’t have the power to deal with absolutely all of your property and financial affairs. You can tailor an EPA to suit your wishes.

However, without a signed EPA, managing your affairs when you have lost mental capacity will be a much more complicated and costly process.

If you lose mental capacity and have not signed an EPA then very often an application to the High Court’s Office of Care and Protection will have to be made to be have someone appointed to act on your behalf and manage your affairs. This is known as a Controllership application and the appointed person is known as your Controller. This is often a very difficult, lengthy and costly process and the Office of Care and Protection has very stringent supervisory powers in the management of your affairs.

Whereas if someone already has an EPA in place, the management of your affairs it is much more straightforward. Often your Attorney will be your spouse or partner so it makes their life much easier when they will already be under a lot of pressure. They do not need the added bureaucracy that a Controllership process will involve.

Your Attorney does have an obligation to register that the you have lost mental capacity by making an application to the Office of Care and Protection. If everything is in order the Office will approve the application and within four to five weeks that power of attorney is officially registered and your Attorney can get on with managing your affairs. This may involve making very important decisions about financial matters.

Remember, you can cancel or amend an EPA at any time while you are mentally capable. For example if the Attorney you have chosen dies or becomes incapable or you no longer wish for them to act on your behalf you can change your EPA. You will need to appoint a new attorney(s).

It is important to remember that setting up an EPA is usually very straight forward and inexpensive.

You should always seek legal advice as careful consideration should be given to the range of powers you wish to give your attorney.

For further information please give me a call on 02882243621 or email: barry@mcgalekelly.co.uk.

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