A Power of Attorney arises where one person (“the
donor”) authorises another person (“the donee”) to perform certain acts on
the donor’s behalf. Such powers
given to the donee can be general or specific and are limited to acts, which the
donor himself has power to perform.
Prior to the Power of Attorney Act 1996 which came
into force on the 1st of August of that year a Power was
automatically revoked if the donor became mentally incapable. This problem was overcome by the Act, which permitted the creation of an
Enduring Power of Attorney. An
Enduring Power of Attorney contains a statement by the donor that he intends the
power given to the donee to continue in the event that he becomes mentally
incapacitated through old age or an accident. Once the donee is on notice that the donor has become mentally incapable
of managing his affairs he must register the Enduring Power in the High Court in
accordance with the Act.
Persons should consider contacting their solicitor
with a view to creating an Enduring Power of Attorney if they are concerned that
with the inevitable onset of old age or through an accident they may in the
future be unable to deal with their own affairs in an effective manner. It is advisable at the time of creating the Enduring Power of Attorney
that the donor also makes a Will.
Similarly persons unfortunate enough to suffer from
an illness, which may impair their mental capacity, ought to consider such
course of action.
Many people are reluctant to hand over charge of
their affairs to another. They
should not be concerned in the case of an Enduring Power of Attorney as the Act
provides various safeguards for the donor. These arise at the time when the donor signs the Power and also when the
donee seeks to register it. Members
of the donor’s family must be notified of the appointment of a donee and can
object to the registration of the Power.
The donor can give the donee authority to take
personal care decisions that can encompass such things as his diet and dress,
his housing, who he should see or not see etc… The Donor can also express in
the instrument that the donee liaise with a member of the family in this regard.
As can be seen from the above the great advantage of an Enduring Power of Attorney is the comfort it provides for individuals who can privately arrange in advance to have someone they trust handle their affairs should they become incapacitated. The absence of an Enduring Power may ultimately result in a mentally incapacitated person being made a Ward of Court.
