As previously dealt with in a recent blog post on making an Enduring Power of Attorney (EPA), an EPA is a legal instrument that a person can make when they have the capacity to do so, stating who they would like to deal with their financial affairs in the event that they would ever become mentally incapable of dealing with such financial affairs.
In this post we will cover the benefits of having an EPA in place. Again an EPA is like any other legal instrument, wherein it is tailored to suit the person making the EPA and their own individual needs and circumstances. In a nutshell you are appointing an Attorney who will be the person; or people if you are having more than one Attorney, who essentially would stand in your shoes if you became incapable of dealing with your financial affairs and the Attorney would then deal with your financial affairs as you would have done when you were able to do so. If you are appointing more than one Attorney, you will firstly have to decide whether you want your Attorneys to act jointly; that is that they must always act together, or jointly and severally; that means they can act jointly but they can also act separately with each others permission. Secondly you will have to decide whether you would like your Attorney to deal with all your property and financial affairs, or if you are wanting your Attorney to have limited powers; such as dealing with a few bank accounts but not all your financial matters. Finally you will have to decide whether you would like your Attorney to act now in relation to dealing with your property and affairs whilst you are still capable of doing so, or alternatively if you are reserving their powers as your Attorney until such time as you would become mentally incapable of dealing with your property and affairs, meaning that your Attorney would not be able to act on your behalf unless you became mentally incapable of dealing with your financial affairs. Again, this depends on your own personal circumstances and whether you would like your Attorneys to act now whilst you are capable of managing your financial affairs, or whether you only want them to act in the event of you not being able to deal with your financial affairs. Once you have decided on the above matters, an EPA can be made and if in the future you were to become mentally incapable, this EPA will last and allow your Attorney to act on your behalf in relation to your property and financial affairs.
What are the benefits of having an EPA in place?
By having an EPA in place, you are having a complete say and complete control over who you would like to be appointed to deal with your property and financial affairs. In the event that a person does not have the capacity to make an EPA and someone needs to be appointed to look after this persons financial affairs, a different process is involved and this is called a Controllership; where someone or some individuals are appointed by the High Court here in Northern Ireland to deal with that persons financial affairs. It is the Office of Care and Protection within the High Court of Northern Ireland that deals with such Controllership Applications. Family members can apply to be named as Controllers. However as explained above, by making an EPA when a person has the capacity to do so, they are deciding who is to act in relation to their financial affairs, rather than the Court appointing someone to act; as is the situation in relation to Controllership Applications.
In addition, by making an EPA you are also governing the extent of the powers that you are giving to your Attorney in relation to your financial affairs. Again, you have control over the extent of the powers you are giving your Attorney. In the situation of a Controllership application; which as outlined above is required when a person does not have the capacity to make an EPA appointing someone to deal with their financial affairs, the Court will direct the extent of the powers that a Controller will have in dealing with the persons financial affairs. The Court will require details of the persons finances and details of all their financial affairs and when the Controllership application is granted, the Court will make a Controllership Order setting out directions for the Controller (the person appointed to deal with the persons finances), in relation to how such finances are to be dealt with.
In effect therefore, having an EPA in place is allowing you to have complete control over the powers and directions you are giving to your Attorney in respect of their dealings with your financial affairs and therefore having a say on how your financial matters are to be dealt with.
Here at McCay Solicitors we would be more than happy to assist you with making your Enduring Power of Attorney.
Written by our Associate, Andrea McGill.