Enduring Power of Attorney is one way to cover all eventualities, giving somebody legal authority to make decisions on your behalf if you lose the mental capacity to do so.
It can be an immensely stressful time, when a family member is diagnosed with dementia or Alzheimers.
With life expectancy increasing, there is a great responsibility for family members to take care of their relatives and, unfortunately, important financial and legal decisions need to be made on their behalf.
This particularly impacts farmers, where decisions may need to be made in respect of the running of the farm.
If a person becomes mentally incapacitated, all of their assets and property cannot be used or accessed by anyone else, unless they are jointly owned, which will make the everyday routine of paying bills, running a farm, and making basic financial decisions very difficult.
In such a situation, a family member has two options legally, which are to make a Ward of Court application, or create an Enduring Power of Attorney, also known as an EPA.
If a farmer is proven to be of unsound mind, he or she can be made a Ward of Court, where a judge has the power to make decisions on the farmer’s behalf.
This application is made to court, and needs to be supported by medical evidence.
This is a complicated and costly application, and the second option of creating an enduring power of attorney is the preferable option.
An EPA allows somebody to have legal authority to make decisions on your behalf about your financial affairs and welfare, should you lose the mental capacity to do so.
An EPA is a legal document which only takes effect in the event that the person becomes mentally incapacitated.
The person creating the EPA is known as the Donor, and in the event of him or her becoming mentally incapacitated, the power to deal with the Donor’s money and assets transfer to the Attorney.
An EPA only takes effect in the event you become incapable of looking after your affairs, and it continues in force until death.
An EPA is similar to a will or a trust, in that it enables the farmer to appoint someone of their choice to control their affairs, should they become mentally incapacitated.
If you wish to create an EPA, you must be of sound mind, and have mental capacity.
It is not possible to create an EPA after you are deemed to lack mental capacity.
Your Attorney is your own choice; it can be someone such as your spouse, partner, parent, sibling or friend.
Whilst it is a personal choice, it is important you give this due consideration, and choose a suitable person, who you believe will be capable of managing all your affairs.
In the case of an Attorney for a farmer, this may involve running the farm, managing bank accounts, as well as decisions affecting day-to-day personal care.
Accordingly when choosing an attorney, it is imperative you consider somebody with the requisite skill and ability to look after your affairs, and to choose somebody you trust.
By executing an EPA, you retain control over who has the responsibility of looking after your affairs.
This will ultimately leave you with peace of mind that your affairs are being looked after.
The crucial thing is to set up an EPA while you are still mentally capable of doing so, well before you need it.
If you become mentally incapacitated later in life, and do not have an EPA in place, your relatives can face long, distressing delays, and expense, in applying to courts to take control.
It is better to plan ahead and appoint an EPA, and not take the risk that your affairs shall not be under the control of somebody you trust.
It is advisable that every farmer should enquire about creating an EPA with their solicitor, if they have not already done so.
It is a relatively simple process, but it does require the services of both a doctor and a solicitor.
If you change your mind, an EPA can be revoked at any time, before the farmer becomes mentally incapacitated, and in this event, you will need to consult with your solicitor.
It is recommended that people of all ages consider setting up an EPA.
A person can lose mental capacity in many situations, such as a brain injury arising out of an accident, and it is best to cover all eventualities.
EPAs are legal documents that can be set up relatively simply.
They are designed to be recognised by financial institutions, nursing homes, and local authorities, and should be looked on almost like an insurance policy.