It is unfortunately the position nowadays that as people can expect to live longer lives we are increasingly encountering one of the issues associated with advancing age which is dementia. A question frequently asked is how does one prepare for the possibility of dementia in later life and the answer is to complete a legal document called an Enduring Power of Attorney. This is not to be confused with a will which is a separate legal document as outlined in the next paragraph.
A will is a legal document usually prepared with your solicitor in which you clearly set out how your property is to be divided upon your death. In your will you appoint family members or friends as your executors who will be responsible for dealing with your property on your death also known as your estate. A will may be changed by you at any time provided always that you have the mental capacity to do so.
By contrast an Enduring Power of Attorney is a legal document which sets out how and by whom your property and affairs are to be managed in the event that during your lifetime you become mentally incapable of so doing. This document may be referred to colloquially as a living will but its correct term is an enduring power of attorney. In an enduring power of attorney you appoint two or more attorneys to manage your affairs and to make care decisions on your behalf during any future period of mental incapacity. Clearly the attorneys that you will appoint will be trusted family members or friends who will always act in your best interests and who you trust to make decisions on your behalf regarding your personal care and property.
An enduring power of attorney may be changed by you at any time provided always that you have the mental capacity to do so. If it becomes necessary for your attorneys to act on your behalf as you are no longer mentally capable of so doing, they may only do so once the original enduring power of attorney is registered in the High Court supported by an Affidavit from a doctor confirming your mental incapacity. This procedure is to protect your position as the donor of the power. If you subsequently become mentally capable again, the enduring power is revoked upon your application to the court to revoke same.
An enduring power of attorney does not set out how your property is to be divided upon your death. The only document which can do this is a will. It is important for everyone to consider making an Enduring Power of Attorney and a will with your solicitor .