Why Have Enduring Power of Attorney
Recently I was asked by a client would it be possible for his widower dad to create an enduring power of attorney making his brother the attorney. His dad would need medical care and attention and the family home was the only real asset available to pay for his medical care. Knowing the family well I knew this was a very genuine case and the creation of an enduring power of attorney would be greatly in ease of the family.
However, I had reservations as recently I had heard him say that his father was repeating himself a lot and telling the same stories over and over as if he hadn’t told them before. After some questions it became clear that the dad had been admitted to a nursing home as she was past caring for himself. He was suffering from a mild form of Alzheimer’s disease which is the most common form of dementia.
It was with deep regret that I had to decline. This is always a difficulty for me in the practise of law. This client is close to me and I meet him regularly. He would have heard me refer occasionally to enduring powers of attorney and the necessity to make them while still without trace of mental deterioration. Yet I feel constrained to ask more direct questions for fear of intruding. Also I did not act for the dad so it was possible that his own solicitor had previously made a power of attorney.
Now it was too late and the only option was to consider making the dad a ward of court.
It is important that we, as lawyers, popularise the making of an enduring power of attorney. We have campaigned long and hard to popularise the making of a will (including introducing a wills week) and we should now campaign to have a power of attorney week.
The enduring Power of Attorney is a legal document giving power, usually to a family member, to take over the affairs of the person creating the power (the Donor) when that person is no longer mentally capable of making informed decisions. As well as financial decisions the Attorney can make personal care decisions also.
There are two types of powers of attorney:-
•Power of Attorney which is used in certain circumstances where the Donor is intending to be absent but requires an Attorney to sign papers on his behalf. It ends when the date stipulated in the Power is arrived at or the Donor becomes incapacitated
•Enduring Power of Attorney is only effective after the Donor becomes incapacitated but must be created while the Donor is mentally sound.
The necessary legislation was brought passed in 1996 so it has been around a long time yet it remains largely forgotten and unused. If you have a trustworthy person to appoint as your Attorney I would encourage you to consider making one now.