What are the differences between a power of attorney and enduring power of attorney?
Both a power of attorney and an enduring power of attorney transfer significant power and responsibility to another person (attorney) by the person transferring the power (donor).
A power of attorney is a document which transfers power and responsibility during the donor’s lifetime and whilst they have capacity. The enduring power of attorney, drafted when the donor has capacity, only transfers the power when the donor becomes incapacitated. On the death of the donor, this power ceases to have effect.
An enduring power of attorney is a very useful tool to retain some control over your personal affairs if you become mentally incapacitated, either through an acquired brain injury, dementia etc. You can identify the people you want to support you and you can control some of your affairs. You can also make recommendations for aspects of your care. It is also a way to avoid Wardship proceedings issuing against you.
There are rules about how you prepare and write an Enduring Power of Attorney. The rules are set out in the Power of Attorney Act 1996. You must meet with both your solicitor and doctor to ensure that you understand what you are writing and that you are not under any pressure or influence to prepare one.
An Enduring Power of Attorney will only become active if the High Court permits it, on foot of the lodging of a medical certificate. This process is known as registration. The donor can oppose the application. The donor can also revoke the Enduring Power of Attorney at any time before registration
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