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Enduring Powers of Attorney

Have you ever wondered what happens when you can no longer manage your own affairs?

The Protection of Personal and Property Rights Act 1988 allows you to appoint people you know and trust to manager your affairs for you under Enduring Powers of Attorney. These powers come in two forms, one, for Personal Care and Welfare, and a second, for Property.

In relation to your personal care and welfare, you can only appoint one person, at any given time. In relation to property, you can appoint two or more people, if you wish.

The Enduring Power of Attorney in relation to Personal Care and Welfare can only be activated by your attorney when you have lost mental capacity. You will be presumed to be competent unless a registered medical practitioner assesses you and certifies that you no longer have the capacity to manage your own affairs.

The Enduring Power of Attorney in relation to Property can be made so that it also acts as a general power of attorney and can be used by your nominated attorney, or attorneys’, while you still have mental capacity or only if you have lost mental capacity.

If you lose mental capacity for any reason and you do not have Enduring Powers of Attorney in place, the Protection of Personal and Property Rights Act allows for an application to be made to the Family Court for someone to be appointed as your Personal Care and Welfare Guardian and / or Property Manager. This is a much more expensive process than simply putting Enduring Powers of Attorney in place yourself and often involves obtaining consent from family members or other affected people. As a consequence it can be time consuming and stressful.

In September 2008 significant changes were made with the passing of the Protection of Personal and Property Rights Amendment Act 2007. If you have existing Enduring Powers of Attorney, they will not be affected by the changes to the legislation and will remain in force. If you wish to have new Enduring Powers of Attorney put in place, there are a range of options in the new forms, which your lawyer will explain to you as part of the drafting process.

Enduring Powers of Attorney are very important planning tools and we recommend that everyone, regardless of age, should have these in place so that in the event of an unforeseen loss of capacity, your affairs can be managed. You should also ensure that you have a current and up to date Will. By taking these two steps, you can ensure that you reduce stress for your loved ones at what is already a stressful time.

As with all areas of law, it is important that you seek good advice from a team who understand how this area may impact on you and your legal requirements. At Harmans we have experience dealing with estate planning strategies. Give Phillipa Shaw a call on 03 352 2293 to arrange an appointment to discuss your situation.


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