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Power of Attorney

 

What is an Enduring Power of Attorney?

 

An Enduring Power of Attorney is a power created by a document whereby one person appoints another person or persons to be his or her attorney. An Enduring Power of Attorney will continue to operate even if the person appointing the attorney becomes mentally incapacitated, whereas a general power of attorney becomes null and void on the incapacity of that person.

 

Once appointed, what can the Attorney do?

 

This depends on the wording of the document. The power may be limited i.e., to operate on a particular bank account. Alternatively, the power may be unrestricted and the attorney is able to sign any document which the donor of the power could have signed.

 

Does the appointment mean that the donor can no longer sign documents?

 

No. The appointment only means that an additional person or persons can sign documents for the donor. If the donor becomes mentally incapacitated then his or her signature will be invalid and the attorney will need to sign all necessary documents.

 

What is the difference between an Enduring and a General Power of Attorney?

 

A General Power of Attorney is valid whilst the donor is of sound mind, whilst an Enduring Power of Attorney is valid until the death of the donor. Most powers of attorney are prepared as enduring powers of attorney for the reason that most donors will want to know that their attorney can sign any necessary documents if they are incapable of doing so.

 

When does the power commence?

 

From the date that the donor and the attorney sign the document, unless a later date or event is specified.

 

Do I need to give a Power of Attorney?

 

If you want someone to be able to attend to your affairs if you are unable to do so, then the answer will probably be yes.

 

Can you give me an example of when such a power might be required?

 

Assume that a husband and wife have all or some of their assets in separate names. If either of them became mentally incapacitated or were involved in an accident and were unable to sign documents relating to the asset in his or her name, then the other spouse would in almost all circumstances not be able to deal with that asset without a Court order or an administration order from the Guardianship Board. This may be costly and time-consuming. Even where a couple holds all their assets jointly, should one become incapacitated and as a result the other has to sell the family home, the signatures of both spouses are required on the transfer document.  Again, a special order would be required before the spouse who is not incapacitated would be able to sign on behalf of their incapacitated partner.

 

What duties does the attorney have?

 

The Powers of Attorney and Agency Act, 1984, prescribes certain duties for the attorney to observe:

 

The recipient of an Enduring Power of Attorney must keep and preserve accurate records and accounts of all dealings and transactions made using the power, otherwise they commit an offence and can be fined. 

The recipient cannot renounce the power during the legal incapacity of the donor, except with the leave of the Supreme Court. 

The attorney must exercise his or her powers with reasonable diligence to protect the interests of the donor otherwise he or she is liable to compensate the donor any loss suffered as a result of such failure. 

 

Can I change or cancel an appointment of an attorney?

 

Yes, at any time whilst you are of sound mind.


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