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Will Johnston

July 2019

Enduring powers of attorney and Wills - peace of mind

Imagine not being able to make decisions about your property or wellbeing. Wouldn’t you want someone you trust looking out for you? Wouldn’t you want this person appointed automatically if you unexpectedly lose mental capacity?


Anyone can lose capacity at any time, but the elderly are particularly vulnerable. Not having enduring powers of attorney in place can create delay, stress and can be very expensive because an application will need to be made to the Court, with possible regular Court applications being required.


Most rest homes require their residents to have their powers of attorney in order, just in case.


What is an enduring power of attorney?

An enduring power of attorney refers to a document whereby you as “donor” grant to another person or “attorney” the power to make important decisions on your behalf if you lose your mental capacity (i.e. the appointment “endures” the loss of capacity). Losing capacity means not being able to make decisions for yourself, or not being able to communicate your decisions.


There are two types of power of attorney covered by the Protection of Personal Property Rights Act 1988; property, and personal care and welfare.


Property

A property attorney can make decisions regarding things you own; your house, car, pets, and other personal belongings.


It is possible to empower your property attorney to make decisions for you about your property at all times, whether or not you have capacity. This can be convenient if, for example, you want property dealt with while overseas. Or, a property attorney can be limited to making decisions on your behalf only if you lose mental capacity.


Personal care and welfare

Personal care and welfare relates to care decisions, such as where you live, and within limits, what medical treatments you will receive. An attorney for care and welfare may only act while you lack mental capacity. If you have your mental capacity, you remain entirely responsible for your own care and welfare decisions.


Who can act?

For property, you may wish to appoint more than one attorney, who can be directed by you to act jointly or alone. For personal care and welfare, you can only appoint a single attorney (only one person can act at a time).


Are there any limits? How does it work in practise?

Only a medical practitioner can assess if you have lost your capacity. This means that your enduring powers of attorney will only come into effect once a professional assessment has been made.


You can direct that your attorney must consult with various people. You may also wish to impose limits on the exercise of the powers. If an attorney decides they no longer wish to act, then you can nominate successor attorneys in advance.


It is important that you only choose people you trust to be your attorneys. You should discuss your wishes with them, and ensure that any specific wishes are recorded in writing, preferably as part of the power of attorney document.


Attorneys are required to always make decisions in your best interests. They should ensure that you make your own choices and exercise your independence as much as possible. A good attorney not only makes choices you would approve of, but also assists you to make your own life choices.


Living Will

A living Will is a document that lets you state your wishes for end-of-life medical care, in case you become unable to communicate your decisions. It can be prepared with your powers of attorney documents to guide your attorney in making choices for you.


Your final Will

A final Will is a formal declaration of what you wish to happen when you die. It can specify wishes relating to property, your funeral arrangements, guardianship of children, and how your body and remains are treated. A Will creates trusts for the beneficiaries, and can be as simple or as complex as your assets and personal circumstances might require.


In making a Will, you should carefully consider your wishes to avoid possible claims by family members, or other people in your life.


Why should I act now?

Now is an excellent time to consider updating your wishes even if you already have powers of attorney or Wills in place. Getting this wrong can create a lot of stress and expense for the family.


We would be very happy to review your documents, and discuss your current needs with you to make sure those documents are up to date and suitable.


Dewhirst Law offers fixed-fee rates to meet with you and prepare these documents, and we offer a SuperGold Card discount of 10%.


We will assist you to record your wishes, and achieve peace of mind, by getting these important arrangements in place.