I only want it to operate when I can't manage my own affairs.

  • This is a common request but not easy to fully accommodate. Debate rages among lawyers as to how to deal with this. It is possible to put a condition in the Power of Attorney that says something like 'this Power shall only be valid if I am unable to manage my affairs' or ‘only to commence when my incapacity is certified by a medical practitioner’. However in practice this may be impracticable as it would mean that anyone dealing with your attorney such as a bank would have to make a judgment as to whether you were capable or the condition had been complied with. Past experience shows that they might refuse to honour the Power of Attorney for fear you would later claim you were alright and didn’t authorise the use of the document. In such cases, there would be no point in having the Power of Attorney.
  • In my experience, most people accept the difficulty of limiting the use of the power of attorney by reference to their mental capacity. Other lawyers may disagree with the problems I foresee in trying to make it conditional upon such mental health. The difficulty is that the question won’t be tested until you have lost capacity and then won’t be able to sign another document to fix the problem. The best advice is to appoint more than one attorney and only people you trust.
Can I have more than one Attorney?
How is it Created?
 

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Sunday, 16 December 2018
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