Enduring Power of Attorney

A FATE WORSE THAN DEATH?

Much is being written about the new Lasting Power of Attorney due to become effective in October. Although advantageous in some ways, there is no doubt it will be more time consuming and more expensive than its little predecessor, the Enduring Power of Attorney. You only have until the end of September to take one out. Why don't you? Please read on to see why you should....

Ask anyone to name the time when their life will be over and, perfectly reasonably, the answer will be "when I am dead". For most people, that will be the case and many will make a Will to make clear their wishes on how their estate is to be distributed.

As a solicitor dealing solely with Wills, Probate and Elderly Client matters, I still remain surprised at the number of people who have never given any thought as to how their everyday financial affairs would be dealt with if they were, for example, left in a vegetative state following an accident, or a severe attack of meningitis, or simply became ill with dementia. For most people, having finally got round to making a Will is a major achievement in itself, and is certainly something to be applauded and encouraged due to the difficulties that can arise when someone dies intestate, ie, without having made one.

For the past twenty years or so, families of those with illnesses such as the ones mentioned have been much more easily able to deal with the associated problems if there is an Enduring Power of Attorney. Simply, this is a straightforward Deed signed by Mr A that gives Mrs B the right to deal with his affairs. If Mr A does not want Mrs B to have that right immediately, then he can insert a condition to say that she will not have the right until he has lost his mental capacity. So, if after a few years Mr A develops Alzheimers' Disease and can no longer look after his own financial matters, Mrs B can step in and do it for him. There will be no difficulties encountered by Mrs B as Mr A gave her that right when he was in full possession of his faculties.

Compare this to a situation where no such Enduring Power of Attorney exists. Mr C suffers a stroke, and is in a deep coma in hospital with no prospect of recovery. He has always taken care of the family finances such as paying bills etc., and the bank account for doing so is in his own name. Not even Mrs C can access that account, or anything else in Mr C's sole name. All of his assets will be frozen, and if state benefits are also paid into that account some serious hardship could follow. As Mr C is no longer mentally capable, even if he were awake, he could not ask anyone to be his Attorney by using an Enduring Power of Attorney. Instead, a member of his family will have to apply to the Court of Protection to act as a Receiver for Mr C's affairs. This can be a long, expensive process and rarely takes less than four months, during which time all of Mr C's assets remain untouchable.

The Enduring Power of Attorney is a marvellous legal facility, allowing someone of your own choice to handle your financial affairs should you ever become unable to do so. It is a short, inexpensive task for a solicitor to do for a client and it can save so much heartache later on. Of course, the person you appoint has to be someone you trust absolutely, and it does not have to be a member of your family. This does not mean that your family are in any way dishonest, but if you have a son or daughter who is hopeless at handling their own money, do you really want them handling yours?

Tales abound about senior citizens being ripped off by unscrupulous individuals who have been appointed under Enduring Powers of Attorney. Whilst I am sure that such sad cases exist, my experience is different in that I have been privileged to deal with sons, daughters, nieces and nephews who are genuinely fond of their elderly relative, and who only want what's best. Elderly members of society are, by and large, an absolute pleasure and I rarely come away from dealing with one without having picked up some interesting piece of historical information, or at the very least shared a good laugh!