Power of Attorney

By: J.A.J Aaronson - Updated: 23 Mar 2017 | *Discuss

 

The granting of probate ensures that the financial affairs of an individual can be dealt with effectively, by a trusted person, after their death. The naming of the executor is an important factor in a will, not least because of the reassurance that it can give to the writer. However, there are many cases in which it is necessary to grant similar powers to those conveyed by probate, but while the individual is still living. In these circumstances, the 'power of attorney' is a very good option.

Legal Agreement

When considering becoming a donor (that is, conveying the power of attorney with regard to your affairs), the first consideration is which type of arrangement best suits your circumstances.

The first of these is an ordinary power of attorney. This is the more limited of the two types, as it will be automatically revoked if you are judged to be no longer mentally capable. As a result, this should not be considered if you have been diagnosed with a mental illness. If, on the other hand, you have been diagnosed (or think you may be diagnosed) with an illness which will lead to the loss of your mental capacity, you should make arrangements for an enduring power of attorney. Such powers will not be revoked if you become mentally incapable and, as such, enduring power of attorney is often recommended for those who are diagnosed with Alzheimer's. It is possible to stipulate in the agreement that the powers should only be assumed once you are no longer mentally capable of managing your own affairs; otherwise, they will begin immediately and automatically.

Independent Advice

Anyone can become a donor, but you must be mentally capable at the time that you make the arrangements. Similarly, you can only donate powers which you currently have. Your choice of attorney is also very important; although there are many professional attorneys, many people would prefer to nominate a trusted friend or family member.

There are certain restrictions on who can become an attorney. The most important of these is that anyone who is currently, or who has ever been bankrupt is forbidden from assuming enduring powers of attorney, although they may be nominated for ordinary powers. Finally, as becoming an attorney is a significant responsibility you should, of course, check with the prospective nominee first.

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