A everlasting energy of legal professional is a authorized doc that appoints an legal professional to behave in your behalf when you find yourself unable or unwilling to take action. In contrast to a will, an EPA works throughout your lifetime

By Tammy McLeod*

In my opinion, Enduring Powers of Attorney (“EPAs”) are the most practical legal documents we have.

Wills are generally considered to be the most useful and common legal document, and while wills are exceptionally important and not obtained far enough, there is at least one prescribed process that must be followed if you die without a will. However, if you are losing mental capacity and you do not have EPAs, you will need to file a court application.

There are two types of EPAs. One that relates to property and one that relates to personal care and wellbeing. The real estate attorney refers to all personal items. This does not include trust assets, it only deals in assets that are personal to you. In most cases, the real estate attorney’s role includes access to bank accounts, paying bills, and in some cases authorizing the sale of personal property. It can also include signing documents like insurance claims. This can be important if someone became incapacitated for work due to an insurable event and has taken out insurance that pays out in the event of that event.

A common misconception about incapacity is that if the incapacity is lost, his wife, husband or partner can sign on behalf of the incapacitated person, especially with regard to jointly owned property. This is just not the case. If I were to lose my legal capacity and my husband wanted to sell the house or access accounts to which we were co-signers and no EPAs existed, he would have to file an application with the court to be appointed as my attorney to sign those documents. It’s much easier and cheaper to implement EPAs.

EPAs related to property can either be invoked only in the event of incapacity or they can take effect immediately and last beyond the incapacity. An elderly person is more likely to be given immediate power of attorney to allow their attorney to handle their personal affairs even if they are still legally competent, but it may be more convenient to have someone else handle their affairs for them.

You can appoint more than one person to be your real estate attorney. You can also have alternative appointments in the event that the person you appointed is unable to attend and you can also stipulate that other named persons must be consulted or that information about the lawyer’s procedure be given. This can be helpful when someone wants all of their children to be involved, but it is impractical to have them all lawyers.

Personal care and welfare attorneys will only be effective if the donor is mentally retarded. The attorney makes hospital care, medication, surgery, life support, and ongoing care decisions when the donor cannot make these decisions himself. Only one person can be appointed as a Personal Care and Welfare Attorney at a time. The reason for this is that doctors do not want to deal with committees and decisions often have to be made quickly. Here, too, you can set up alternative appointments and say that certain people must be consulted or are entitled to receive information about the lawyer’s actions.

The cost and time of bringing an action to the Court of Justice in a situation where no EPAs have been introduced is too high given the ease with which EPAs can be filled out. Sometimes there can be competing interests and a number of lawyers need to be involved to represent all parties. At the very least, there must be an attorney for the incapacitated person and an attorney for the proposed attorney. However, think about the situation where there is a second marriage and the new partner and a number of adult children could compete for lawyers. They would all have to be legally represented separately and costs and time will escalate.

EPAs are the most convenient legal document you can produce. Each of us at any age and at any stage could be involved in an event that renders us incapable of acting. They are not just for grandma or grandpa in the nursing home. If you don’t have these, speak to your lawyer now.

Tammy McLeod is the managing director of Davenports Law, specializing in personal wealth planning, fiduciary law and the Property (Relationships) Act.

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