Have you considered what would happen if you had an accident, became seriously ill or simply became unable to deal with your financial affairs? When a person experiences such a loss of capacity it can be a very difficult time, for both them and for their family and friends. From a practical and financial point of view it makes sense to put your affairs in order in advance by making an Enduring Power of Attorney (‘EPA’).

An EPA is a legal document which enables you to grant to one or more persons (the ‘attorneys’), authority to act on your behalf in relation to your property and financial affairs. It is possible to restrict the scope of the attorneys’ powers but in most cases it will be advisable to keep these as wide as possible, in the interests of flexibility.

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If appointing more than one attorney you can also choose whether to do so ‘jointly’, in which case they must always act together, or ‘jointly and severally’ in which case they can act independently of one another should they wish to do so.

You can also indicate whether the Enduring Power of Attorney is to take effect immediately, or only in the event that you become incapable of managing your affairs in the future.

In either case, in the event of a loss of capacity your attorneys would be required by law to apply to register the Enduring Power of Attorney with the Court before they can deal with your affairs any further. The purpose of this process is to ensure the Court is aware of the loss of capacity and to enable notice to be given to any interested partied. The attorneys would be required to give formal notice of their application to register to both you and at least three of your closest relatives who would then be able to lodge any objections which they may have with the Court. Thankfully, in the vast majority of cases, registration proceeds without any objections being lodged and without the need for any formal hearing.

In the event that a person loses the capacity to manage their financial affairs but have not made an EPA, then a relative or carer may need to apply to the Court to be appointed as their Controller. This is a separate process which can prove time consuming and is certainly more costly than making an EPA. For that reason, EPAs are to be recommended so as to avoid the additional inconvenience and expense of Controllership.

If you would like to explore the possibility of making an EPA then please speak to a member of our Private Client team.