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Making Good Choices Regarding Who Will Control Your Personal Assets

Wills & Estate Planning

Many people think about making a Will to set out who you choose to manage and distribute your estate after you die, but who do you trust to manage your legal and financial affairs while you are still alive?

It is generally recommended that in addition to preparing a Will, you should also consider granting an Enduring Power of Attorney. By appointing an Enduring Power of Attorney you will ensure that someone you trust is granted the authority to help you if you have lost mental capacity to make your own decisions. Your attorney will effectively be able to step into your shoes and act on your behalf in matters that might include spending and managing your money, paying bills or selling your home.

While there is no doubt that having an Enduring Power of Attorney in place is important, the nature of that power comes with a host of risks.  Choosing the right person for the role is vital because making the wrong choice could leave you open to financial abuse. Your attorney may have unlimited access to your money for example, and if you have lost capacity there may be no-one monitoring their actions. Deciding who to appoint to undertake this role is of crucial importance.

Many people consider their adult children to be the ideal candidates, but you should consider whether choosing one son or daughter over another could lead to family tensions. You also need to ensure that the person appointed as your attorney is trustworthy and financially savvy. If the person you are considering can’t look after their own money, how effectively will they look after yours? As a safeguard you might consider granting the power of attorney to more than one person, and they can be appointed to act jointly. But give careful thought as to whether your two attorneys will be able to agree on the best courses of action to take on your behalf.

Choosing the right attorney or attorneys is a difficult decision, but not one that you should put off for too long. If something unexpectedly happens and you lose the capacity to make your own decisions, it will be too late; as you must have legal capacity in order to make an effective Enduring Power of Attorney. If that happens, then the person that may then be appointed as your financial manager (by the Guardianship Tribunal) may not have been the person you would have chosen.

Please contact our Estates team for further advice about preparing your Enduring Power of Attorney.