Incapacity can strike at any time in life, whether by a sudden accident or illness or a slow deterioration over time. This can make every day routines such as paying the bills, managing your general financial requirements and attending to your health requirements very difficult if not sometimes impossible. The solution to this is while you are still mentally capable to appoint an attorney to look after your financial and health needs. An "Enduring Power of Attorney"
There are two types:
- Enduring Power of Attorney for Property. This will allow the attorney to sign documents either immediately upon completion of the document or from such later time that the donor is mentally incapacitated as determined by a medical practitioner. So the type of document that is drafted depends on the relationship and trust between the parties and whether there is a need to have immediate assistance from an attorney. The power ends at the death of the donor or upon any earlier revoking or cancellation of the appointment.
- Enduring Power of Attorney for Care and Welfare. This allows an attorney to make decisions in regard to the donors care and welfare and is most commonly used for elderly people. The attorney’s power to act only comes in to effect at the time of mental incapacity.
Both documents require that the donor of the power is given legal advice on the document before he/she signs it and a certification by the lawyer is attached to the document.
It is too late to make these documents if the donor is already mentally incapacitated. This may come down to medical opinion.
At all times the attorney has a duty of care to take instructions (where possible) from the donor as to the donor’s wishes and furthermore to act in the best interests of the donor at all times.