Posted: Friday, 4 January 2019 @ 13:43
What are the primary reasons for using Powers of Attorneys?(POAs)
These can be summed as positive and negative.
On the positive side, powers of attorney provide a relatively cheap and simple procedure where the donor is able to prepare in advance for the possibility that he may become mentally incapacitated in the future.
A POA respects the donor's autonomy by allowing him to choose the person or persons he wishes to manage his affairs.
It allows a smooth and seamless transition in the management of the donor's affairs from the time when he is fully in command of his faculties, through to the twilight stage when he is fully incapacitated.
A POA avoid the stigma of having a formal assessment of capacity. It gives greater freedom of action to the attorney. The person who really benefits from enhanced autonomy is the attorney, because of the absence of constraints that would be imposed upon him if he were a court appointed attorney.
The key negative reason of a POA is to avoid Court of Protection proceedings, which are often complicated, time-consuming and expensive.
In some cases they can be humiliating and embarrassing. Relatives have to ask the court to make an order declaring that the relative is no longer capable of managing his or her own affairs and property.
If the judge decides that the appointment of the deputy is necessary, then there is no guarantee that the person he appoints will be someone whom the relative would have chosen.
Although the judge will take into account the relative's feelings, he is not bound by such preferences, especially if there is a dysfunctional family and members do not trust each other, or where the relative's choice of deputy has a history of financial dishonesty and/or ineptitude.
Where family members argue, the proceedings are often acrimonious, expensive and end in stalemate, whereby the court appoints a professional deputy from a panel of solicitors. As a result the legal costs escalate and they are usually payable from the estate.