Entering the Third Act, introduces new considerations for planning for your senior years. Heretofore your priority may have been your children, siblings or your own aging parents but now as your own seniority looms it’s a great time to put your focus back on yourself and make plans for this wonderful time in your life. But for over 20 years I have been working in the area of succession planning I have begun to see and understand the challenges that arise as senior clients age and plan for their own care, financial and health priorities in their senior years. Age is but a number it is said but if we are being really honest aging introduces new challenges and opportunities worth discussing. In this week’s article I will address some of the most frequently asked questions I get asked:
Can a person diagnosed with dementia sign legal documents?
Someone who is in the end stages of Alzheimer’s disease probably does not have the requisite capacity to sign legal documents. However, a person with a diagnosis of dementia may very well be able to sign legal documents. Generally speaking, capacity is usually assessed in each individual situation. As a general rule the person signing must have sufficient understanding to know and understand what the document is they are signing . They must also understand the nature of the document and the effect arising from their signing of the document.
What type of documents would be relevant in my Senior Years?
- Ability to sign a contract — Exchange your home , sell your home , transfer property
- Ability to make an Enduring Power of Attorney for future health & financial care
- Understanding of a power of attorney, which might give the authority to another person to sign future documents in your absence but when you have clear capacity
- Capacity to sign a will and trust and associated succession planning documents
- Capacity to get married (which is, after all, a specialized kind of contract).
- Ability to make medical decisions — including refusing medication, or either seeking or declining mental health treatment.
- Ability to give informed consent for medical treatment ; medical or surgical procedures may not be carried out without the informed consent of the patient
Why is an Enduring Power of Attorney necessary for Seniors?
An enduring power of attorney is a legal agreement that enables a person to appoint a trusted person – or people – of their choice to make financial and/or property decisions on their behalf. An enduring power of attorney is an agreement made by choice that can be executed by anyone over the age of 18, who has full legal capacity. The EPA is a legal authorisation to act on someone else’s behalf in legal ,financial and Healthcare matters which (unlike other kinds of power of attorney) can continue in force after the person granting it loses mental capacity, and so can be used to manage the affairs of people who become ill with dementia or Alzheimer’s. As the document termed an Enduring Power Of Attorney is created when a person has full health and mental capacity more often than not it’s a document that’s created as a precaution and never used if no decline in mental capacity arises . But what it does provide is clarity and a road map at a time that is stressful for families and those that wish to care for you . It contains your wishes for who you wish to make decisions on your behalf and it may contain specific and very detailed wishes for your financial and healthcare wishes.
Does an Enduring Power of Attorney continue after my death?
No, an enduring power of attorney ends on the death of the person who executed the EPA . This means the role of attorney ends immediately on the death of the donor. If the person you appointed as attorney to take charge of your financial and healthcare decisions under the EPA is the executor named in your will then on your death their function in managing your affairs/estate is now in their role as Executor. Not as the attorney under the EPA.
Is it easy to create an Enduring Power of Attorney?
In short yes, but because the enduring power of attorney involves the transfer of considerable powers from you to another person to come into being at a time when you are at your most vulnerable there are a number of legal safeguards to protect you from abuses. The procedure for executing the enduring power of attorney is comprehensive and requires the involvement of a solicitor and a doctor. The enduring power can only come into effect when certain procedures have been complied with.
The document creating the power must be a very specific format and must include the following:
- A statement by a doctor verifying that in his/her opinion you had the mental capacity at the time that the document was executed to understand the effect of creating the power
- A statement from you that you understood the effect of creating the power
- A statement from a solicitor that he/she is satisfied that you understood the effect of creating the power of attorney and that you were not acting under undue influence
As a safeguard at least two people must be notified you have made an EPA, none of whom will be the attorney nominated in the form. One of the notice parties must be your spouse or civil partner if living with you. If this does not apply, one of your notice parties must be your child. If neither is applicable, one of the notice parties must be any relative (that is parent, sibling, grandchild, widow/widower/surviving civil partner of child, nephew or niece).
Is it necessary to make an EPA?
I say yes but what I also say is approach preparing documents for your senior years in a way that allows you address possible future eventualities comprehensively and together. Approach seniority with an understanding of what you need to consider and plan for. Make the time to have the conversations about future care, your wishes, and your families circumstances. Consider your assets and your financial circumstances and recognise the importance of planning ahead for your lifetime and thereafter. It supports you and your family with clarity as to your wishes the who and what. It follows that the time spent by you putting your Senior Life plan in place underpins family harmony.
Call Sharon Cahir solicitor or Laura O’Halloran solicitor this September to make your Senior Success & Succession plan which includes making or updating you will and preparing an Enduring Power of Attorney. It also includes one full free review at any time during your Third Act.