COVID-19: Estate Planning and Enduring Powers of Attorney

09 April 2020

Author: Neil Bleakley
Practice Area: COVID-19 , Private Client

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Making an Enduring Power of Attorney allows you to plan for something which might happen in your lifetime and it should be viewed as an integral part of a careful estate planning strategy.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal document whereby you authorise someone else to manage your property and affairs. Those appointed are known as your attorneys. It is different to an ordinary or general power of attorney in that it continues in force even if you become mentally incapable in the future. The authority of the attorneys ends automatically on your death.

The authority of the attorneys extends only to your property and affairs and does not extend to health care orientated decision making. The Enduring Power of Attorney legal regime in Northern Ireland is different therefore to the position for instance in England and Wales where they now have Lasting Powers of Attorney.

Can the Enduring Power of Attorney only be used when I am mentally incapable?

Not necessarily. The Enduring Power of Attorney can indeed be restricted to use only in circumstances of your mental incapability. However you may wish to have a degree of flexibility in your Enduring Power of Attorney. For instance you may reach a stage in life when although not mentally incapable as such you no longer have the energy or appetite to manage your property and affairs. It could be that you would want your attorneys to act for you at that time. Your Enduring Power of Attorney can be drafted in order to be fully reflective of your wishes.

Can I restrict the authority of my attorneys?

Yes. You can provide your attorneys with either a general authority over all of your property and affairs or you can restrict the scope of their authority.

Should I have more than one attorney?

Ideally yes. Most people appoint two or three attorneys. This allows for the possibility of something happening to one attorney which prevents that attorney from acting. In such circumstances it is important to remember that attorneys should ideally be able to act “jointly and severally”. This means that they can act either together or individually if more practical or convenient. The other type of authority is “joint” authority. That is a less attractive option as in such circumstances the attorneys must at all times act together.

Do the attorneys then have a significant authority?

Yes. The attorneys should be chosen with care. However they must act in your best interests and with due care and attention and they are ultimately answerable to the Office of Care and Protection in the High Court in Belfast. The attorneys do not need to be professionals and can be trusted family members or friends.

Does my Enduring Power of Attorney need to be registered in the office of care and protection?

Only once the attorneys consider that you have become, or that you are becoming, mentally incapable. A strict registration procedure must be complied with at that time. Amongst other things you will be notified of the intention of the attorneys to register the Enduring Power of Attorney and you will be able to object to the registration if you wish.

How do I get started especially in light of the current COVID-19 situation?

As legal documents go, the Enduring Power of Attorney is straightforward in terms of structure and content and instructions can be taken from you over the telephone. The important details relate to you and your attorneys and the scope and nature of the authority of the attorneys. Once discussed over the telephone, the document can then be drafted and forwarded to you by email for approval or for further discussion.

Once the document is approved, it does of course need to be signed by you and the attorneys. That is still something that can be accomplished at this difficult time and with due regard to social distancing and carefulness in the signing and witnessing process. The Enduring Power of Attorney needs only one independent witness and the document can be signed by you and then the attorneys at different times. The witness does not need to be the same person for each of the signatures of you and the attorneys.

If you have any queries about Enduring Powers of Attorney, or wish to discuss an existing Enduring Powers of Attorney with one of our team, please contact Neil Bleakley.

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