ENDURING POWER OF ATTORNEY AND WARD OF COURT
A Will deals with your assets when you die. What happens if you are alive, but you become mentally incapable of managing your affairs? It can happen by accident, old age or otherwise. You might be surprised to know that there is no automatic right for spouses, children, parents, or anyone else to manage your bank accounts or other assets, either for your use or the use of your family. Your Will cannot give these powers (as you are still alive). The only way that somebody can be appointed to take care of you are:
- Wardship – becoming a Ward of Court, or
- Registering a valid Enduring Power of Attorney (“EPA”)
Wardship – becoming a Ward of Court
This is the only option if you have not made an EPA. Somebody must apply to the Wards of Court Office for a Court Order to declare that you are of unsound mind and incapable of managing your affairs. Wardship is more expensive than an Enduring Power of Attorney. It is also more restrictive than an EPA. A “Committee” (a group of people) is appointed by the Wards of Court Office. You have had no choice in who these people are. You have no say in the powers that they have. You have no voice!
Enduring Power of Attorney
An Enduring Power of Attorney is separate to a Will. People should have both. In the EPA you can appoint one or more attorneys (who are generally close family members) to take care of you and make decisions on your behalf in accordance with your wishes, while acting under restrictions that you have imposed. You pick the attorney in the Enduring Power of Attorney. You set out the conditions in the Enduring Power of Attorney. Your voice is heard in the Enduring Power of Attorney!
Rennick Solicitors are very experienced and qualified in the area of Wards of Court and Enduring Powers of Attorney. This specific knowledge and skill means our EPA solicitors can properly advise you and your loved ones about all aspects of estate planning, including making a Will and making an EPA. Our skills, qualities and software system means we are kind, quick and cost efficient. We are experienced, professional and approachable.
What is an Enduring Power of Attorney?
Making an Enduring Power of Attorney gives you (you are called the “Donor”) the right to decide who you would like to look after you if you lose mental capacity to look after yourself. The Enduring Power of Attorney is a clear expression of your wishes and is legally binding on all persons and organisations. For example, if you have a relative who you do not want to have any responsibility or power over you, your assets or your affairs, you can appoint a different person as an Attorney in your EPA, giving that other person responsibility for your decisions. In this way, it can exclude a relative that you do not want from having power of your affairs or assets, for whatever reason.
The EPA stays private and has no effect until it is proven to the Wards of Court Office, an office of the High Court, by the Attorney, that the Donor is mentally incapable of managing their affairs. The Attorneys must provide clear medical proof of the mental incapacity, and the Donor and other loved ones can object to this application. The Wards of Court Office provide a Certificate of Registration of the Enduring Power of Attorney, which the Attorneys can then use to deal with the Donor’s property and to make decisions on behalf of the Donor.
The Enduring Power of Attorney can be changed, amended or withdrawn at any time before the Certificate of Registration is provided by the Wards of Court Office .
- If the Donor recovers and regains mental capacity to look after themselves, then the Enduring Power of Attorney can be revoked.
- If the Donor is mentally well, or is sufficiently mentally well, the Wards of Court Office will not allow the Attorney to take control.
- If the Donor stays mentally well and never loses any mental capacity, the Enduring Power of Attorney will never take effect.
- It is only relevant for mental incapacity – if you can look after yourself physically it has no importance.
What is the difference between Ward of Court / Wardship and Enduring Power of Attorney?
Expensive; involves annual fees, Reactive in nature.
Cheaper; no annual fees; Proactive in nature.
Chief function of the Committee is to visit the Ward and see to Ward’s personal comfort.
Chief function of the Attorney is to follow the conditions in the EPA.
Committee is restricted in what they can do for you.
EPA is as restrictive or as flexible as you want it to be.
Court decides who manages your affairs.
You decide who manages your affairs.