Enduring Power of Attorney

What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a document which enables you to:

• choose a person called an attorney to make decisions for you in the event you become incapable of managing your financial affairs at some point in the future
• allows your attorney to sign documents on your behalf
• enables your attorney to deal with your property and financial affairs.

An Enduring Power of Attorney can only be signed when you are capable and of sound mind.

What happens if I don’t have an Enduring Power of Attorney?

In the event you become incapable of managing your financial affairs, through accident or illness such as Alzheimer’s or senility, and you do not have an Enduring Power of Attorney your assets are frozen and cannot be accessed until an application for a controllership is made through the Office of Care and Protection a division of the High Court in Northern Ireland. Your next of kin would have to instruct Solicitors to lodge this High Court application and your next of kin would be then appointed as Controller of your affairs. Controllers need the approval of the Court in respect of the actions they take and the Court charges an annual fee which is a percentage of the value of your assets for monitoring the activities of Controllers.

Who decides if I am capable?

A doctor determines if you are capable of managing your financial affairs.

Does an Enduring Power of Attorney operate from when it is signed?

As most folk want to maintain their independence a restriction is often inserted on the form to make sure your Enduring Power of Attorney cannot be used unless you are deemed incapable. Alternatively the Enduring Power of Attorney can operate as an ordinary power of attorney when signed if such a restriction is not inserted. Most Enduring Powers of Attorney are made on a restricted basis as very few people wish to hand over control of their financial affairs until they are incapable.

Who should I appoint?

You can appoint your husband, wife, civil partner, son, daughter, a relative, a friend, your solicitor or anyone else you choose. You can choose more than one attorney.

Why make an Enduring Power of Attorney?

If you make an Enduring Power of Attorney you choose who will sign for you if you become incapable. You also save your next of kin the hassle of an expensive High Court application and free them from the bureaucracy and expense of the Court management of your funds. This can be a great relief at a time which would be very distressing for them anyway due to your incapacity.

What powers do Attorneys have?

An Enduring Power of Attorney is a very powerful document giving someone complete control over your affairs so you should choose your Attorney wisely. Your attorneys can sell your home, sell your shares, make investments for you, make gifts on your behalf in fact do anything with your assets you would otherwise be able to do yourself. You can appoint a number of attorneys to act jointly. It is common to appoint your spouse or partner and/ or an adult child. If a solicitor is appointed he or she has a professional obligation to ensure your assets are preserved and used for your benefit, that you have the best care possible and ultimately on your death whatever assets that remain have been kept separate and are still available for the beneficiaries of your Will.

Is there a Court procedure with Enduring Power of Attorneys?

There is still a Court procedure with your Enduring Power of Attorney but it is merely a registration procedure in the Court offices. If you become mentally incapable your Enduring Power of Attorney has to be lodged in the Court offices and you and your next of kin informed of the existence and proposed activation of your Enduring Power of Attorney. A period of 35 days is allowed for anyone who wishes to make an objection and then the Court stamps and returns your Enduring Power of Attorney ready for use. There is no further Court involvement except in the event your attorney requires a special direction from the court over your assets or if an allegation of fraud being brought against your attorney.

Can I change my Enduring Power of Attorney?

You can cancel or change your Enduring Power of Attorney at any time while you are capable. If you decide to appoint someone else or your attorney dies you can cancel your Enduring Power of Attorney and make a new one.

Do my attorneys have to sign my Enduring Power of Attorney?

Your attorneys have to sign your Enduring Power of Attorney whilst you are still capable otherwise it will not be valid. Once you have signed your Enduring Power of Attorney we will arrange to have your attorneys sign it as soon as possible thereafter.

Do my attorneys get paid?

Your attorney will be able to recover out of pocket expenses of acting on your behalf but would not be paid unless acting in a professional capacity. If you appoint a solicitor the solicitor will be able to charge for their time and work on the usual professional terms.

Is it likely I will become incapable?

No; only a minority of the population become senile in old age. The chances are your Enduring Power of Attorney may never be needed. However signing an Enduring Power of Attorney now will ensure your loved ones will be spared the additional time and expense of a High Court Controllership when they are already distressed due to your incapacity. An Enduring Power of Attorney will give you the peace of mind of knowing you have solved a problem for them.

If I appoint a Solicitor do I pay a fee now?

If you appoint one of the partners of Wilson Nesbitt to act as your attorney this will not cost any additional fees now. In the event you become mentally incapable in the future fees would then be chargeable for the time and responsibility of acting. The Law Society of Northern Ireland and the High Court strictly regulate what solicitors are allowed to charge.

Will my attorney know what to do?

Wilson Nesbitt have an experienced estates and trust team available to help and guide your attorney, assist with registration of your Enduring Power of Attorney and have your Bank, Building Society or other financial institutions informed so your attorney can then sign on your behalf. If required a team member can help with making suitable arrangements for the payment of bills. Your attorney can decide how little or much help is needed.

What does it cost to make an Enduring Power of Attorney?

If you make an Enduring Power of Attorney now at the same time as your Will the additional fees are £125 + VAT for each Enduring Power of Attorney unless two spouses, civil partners or cohabiting partners are making similar Enduring Power of Attorney’s together in which case the fees for both Enduring Power of Attorney’s are £175 + VAT. If you wish to proceed with this please enclose your cheque now (payable to Wilson Nesbitt) for whichever of the above amounts is appropriate. This fee will cover correspondence with your attorney to have your attorney or attorneys countersign your Enduring Power of Attorney before it is stored in our strongroom for safekeeping.

Where do I keep my Enduring Power of Attorney?

Wilson Nesbitt have a large safe storage strong room facility where they keep thousands of sets of title deeds, Wills and Enduring Power of Attorneys. Your Enduring Power of Attorney will be stored for safekeeping with your Will in this strong room without charge. You will be given a photocopy of the original for your reference. If your photocopy is mislaid in the future further copies of the original will be provided on request.