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Considering an Enduring Power of Attorney?

>As we plan for retirement, we should consider creating an Enduring Power of Attorney. Unlike a general Power of Attorney, an Enduring Power of Attorney continues to have effect after the Principal loses the ability to make responsible financial, personal or health decisions.

Usually when the Principal begins estate planning, an Enduring (or Protected) Power of Attorney is assigned. This decision assures ongoing financial, personal and health decisions by an attorney who represents the Principal’s best interests and prevents oversight of these matters by a court appointed individual who might be unaware of the Principal’s wishes.

To arrange for an Enduring Power of Attorney, the Principal must invoke the authority and have a certificate attached to the Power of Attorney and signed by a prescribed person, usually the solicitor, who prepares the document.

The certificate states that the Principal understands that the Enduring Power of Attorney will be in effect if the Principal loses legal capacity. The absence of such a statutory certificate would mean that the Power of Attorney would cease to operate once the Principal loses legal capacity.

In many ways, creating an Enduring Power of Attorney is like insurance against the possibility that during your lifetime you may lose the capacity to manage your own affairs. An Enduring Power of Attorney protects the Principal’s interests and the interests of the Principal’s heirs.
Granting an Enduring Power of Attorney does not transfer the decision-making authority in personal or medical matters.

Understanding the ramifications of appointing an Enduring Power of Attorney
Appointing an Enduring Power of Attorney is an important decision. When considering the appointment of a Power of Attorney, the Principal should discuss all relevant issues with a legal advisor, including the following:

  • The choice of the person or persons to be appointed by the Power of Attorney – one or more can be appointed, as well as reserve Attorneys.
  • The conditions or limits that should be placed on the grant of Power of Attorney and in what circumstances the Attorney should be free to make decisions?
  • The circumstances under which a Power of Attorney would become ineffective such as if the Principal’s appointee declines the responsibility.
  • When and how a grant of Power of Attorney can be cancelled or revoked.
  • Any risks in the granting of a Power of Attorney?
  • How the Principal arranges for third parties to accept a Power of Attorney.

Legal Documents Online provides a complete online Enduring Power of Attorney kit for both singles and couples.

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