Do I need an enduring power of attorney?

Do I need an enduring power of attorney?

Contents

Why you might need an enduring power of attorney

It is unpleasant to think that you may ever lose the ability to manage your own affairs. However, by creating an enduring power of attorney you can ensure that if this ever happens, your financial affairs will be looked after by someone you trust.

If there is no enduring power of attorney

There are occasions when the lack of an enduring power of attorney (EPA) can cause problems that could have been easily avoided. For example, you may have had a stroke and been advised that you can't return home to live on your own any more. A nursing home may have been suggested as the best solution. Unfortunately, your family will have great difficulty in selling your house if you are unable to give the necessary instructions for sale and eventually sign the contract. If an EPA exists, then the attorney can sign on your behalf, thus ensuring that these issues are dealt with promptly.

Controllers

If you become mentally incapable and have not appointed an attorney, your finances may be frozen until the Office of Care and Protection (OCP) appoints a controller. A controller is someone appointed by the OCP with legal authority to make decisions (subject to some exclusions) on behalf of the person who lacks capacity (known as the 'patient').

The appointment of a controller may take some time and, in the meantime, your bills might not be paid and your affairs may not be looked after. In addition, there are official fees to be paid that exceed the fees that would be paid to register an EPA.

What about health and welfare decisions?

Northern Ireland currently has no provision for appointing legal proxies with power to make healthcare, medical or other such personal welfare decisions.

The Mental Capacity Act (Northern Ireland) 2016 was given Royal Assent on the 9 May 2016. The Act is not yet operational, pending implementation by the Northern Ireland Executive, but when implemented it will allow for 'Lasting powers of attorney', permitting appointment of attorneys to make health and welfare decisions for a donor. The new Mental Capacity Act (NI) 2016 also makes provision for the creation of a Public Guardian to maintain registers of lasting powers of attorney and Court appointed Deputies and to supervise Deputies. This will allow Northern Ireland donors similar rights to those currently available in England & Wales.