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Power of Attorney

By: J.A.J Aaronson - Updated: 23 Mar 2017 | comments

The granting of probate ensures that the financial affairs of an individual can be dealt with effectively, by a trusted person, after their death. The naming of the executor is an important factor in a will, not least because of the reassurance that it can give to the writer. However, there are many cases in which it is necessary to grant similar powers to those conveyed by probate, but while the individual is still living. In these circumstances, the 'power of attorney' is a very good option.

Legal Agreement

Power of attorney grants the recipient the right to deal with someone's financial affairs. This might include bank accounts, property and stocks. This legal agreement can be devised in such a way that the rights given to the recipient are either general, or are constricted by certain terms. In this way, it is a very flexible arrangement.

When considering becoming a donor (that is, conveying the power of attorney with regard to your affairs), the first consideration is which type of arrangement best suits your circumstances.

The first of these is an ordinary power of attorney. This is the more limited of the two types, as it will be automatically revoked if you are judged to be no longer mentally capable. As a result, this should not be considered if you have been diagnosed with a mental illness. If, on the other hand, you have been diagnosed (or think you may be diagnosed) with an illness which will lead to the loss of your mental capacity, you should make arrangements for an enduring power of attorney. Such powers will not be revoked if you become mentally incapable and, as such, enduring power of attorney is often recommended for those who are diagnosed with Alzheimer's. It is possible to stipulate in the agreement that the powers should only be assumed once you are no longer mentally capable of managing your own affairs; otherwise, they will begin immediately and automatically.

Independent Advice

Becoming a donor (that is, giving power of attorney) is a serious matter, and should therefore only be considered after having sought professional advice. You should also bear in mind that, while there is no legal format for ordinary power of attorney, enduring power must be granted in a prescribed way. Independent advisors such as the Citizens Advice Bureau can help you with this.

Anyone can become a donor, but you must be mentally capable at the time that you make the arrangements. Similarly, you can only donate powers which you currently have. Your choice of attorney is also very important; although there are many professional attorneys, many people would prefer to nominate a trusted friend or family member.

There are certain restrictions on who can become an attorney. The most important of these is that anyone who is currently, or who has ever been bankrupt is forbidden from assuming enduring powers of attorney, although they may be nominated for ordinary powers. Finally, as becoming an attorney is a significant responsibility you should, of course, check with the prospective nominee first.

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My father died two years ago. My sister, who is not my biological sister, because I was adopted when I was an infant, has been very rude to to me and refused to talk to to about any of my father's belongings. She is married, and her husband is the executor of his will and has power of attorney. They told me the put everything in storage over two years ago. I don't know if they still have the things or not. My mother has serious allshimers and is in assisted living. Their house was sold last year. Valued at over 400.00 dollars. I have been told nothing about the will or the settlement. Do I have rights to see my fathers will? Do I have any right to the sale of their property? My sister and my brother in law will not give me any information at all. Please tell me where to start. Thank you

Mary - 23-Mar-17 @ 4:27 AM

when my father died last month my sister changed the locks on him home the day he died can she do that ?, We shared the caring for my father. My other sister came over from spain where she lives and intends staying at my fathers until 31st december. Has she a right to do that as i do not agree with it. My sisters refused to let me see dads will until after funeral and still refusing now too. I also suspect fraudof one of my sisters who had POW for my father. I think she is the executor too.I do not see why i should pay part of the utility bills for my sister staying there for 8 weeks . They took all my mums nice things when she died 2015 and i feel they are taking things for themselves from my fathers , they wont let me in. Please tell me what i can do. Thank you .

loofy - 13-Nov-16 @ 5:45 PM

Linder- Your Question:

My sister is the power of attorney but the funeral is in my name and I am getting debt letters can I change it over to her name as I don't know this at the time.

Our Response:

Who are the executors of the Will? They should be the ones handle the debts. The person that had power of attorney before the deceased died is not necessarily the executor.

TheWillExpert - 4-May-16 @ 11:51 AM

My sister is the power of attorney but the funeral is in my name and I am getting debt letters can I change it over to her name as I don't know this at the time.

Linder - 1-May-16 @ 4:30 PM

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