It is a sad but obvious fact that as we age, some of us may become dependent on others and potentially unable to make our own decisions. The ability to do so or otherwise is referred to as ‘capacity’ and the statutory presumption is contained within the Mental Capacity Act (NI) 2016, although this legislation is yet to be fully implemented.

While the benefits of executing a Will are widely known, planning for the possibility of you becoming incapable of managing your financial affairs is less so.

In Northern Ireland, by virtue of the Enduring Powers of Attorney (Northern Ireland) Order 1987, an Enduring Power of Attorney (EPA) is a document designed to protect your interests whereby you identify someone of your choosing to manage your affairs should you suffer a debilitating accident or illness.  The attorneys would be able to manage your assets and income and deal with any expenses that you have, such as nursing care fees. An Enduring Power of Attorney relates to any aspect of your property and financial affairs however, it does not extend to health or welfare decisions.

An Enduring Power of Attorney can give control over all the Donor’s property and affairs, or it can be made with certain restrictions. For example, the Donor can stipulate whether the Attorney’s powers should take effect immediately when the document is signed (i.e. whilst the Donor has full capacity) or only upon a triggering event in the future (such as loss of capacity) Depending on the Donor’s circumstances, there may be physical or other practical reasons why the Enduring Power of Attorney should be free of any restrictions and used immediately. If you don’t have an EPA in place and become ill or have an accident that leaves you unable to manage your affairs, your family does not have an automatic right to do this for you.

It is important that an EPA is made whilst you are still healthy and capable, rather than waiting, particularly if capacity could be queried at a later stage. It is hoped that an EPA will never be needed of course, but nevertheless it is wise to have one available should circumstances change.

If an Enduring Power of Attorney has been made, the onus is on the Attorney(s) to register the document with the Court if there is reason to believe that the Donor is becoming/has become mentally incapable of managing their affairs. Whilst a registration process must be followed, this is much more straightforward (and quicker) than the alternative application for a Controllership Order.

When a person is no longer in a position to manage their financial affairs due to mental incapacity and has not previously appointed a person/persons to act on their behalf, an application can be made to the High Court of Northern Ireland (the Office of Care & Protection) for a Controllership Order under Article 101 of the Mental Health (NI) Order 1986.

As with all court applications, Controllership is a more expensive procedure, and the role of a Controller is onerous; they must submit annual accounts for approval together with payment of an annual court fee. Neither of these obligations apply to attorneys acting under an EPA.

For advice on EPAs or any other aspect of planning for your future, please contact Millar McCall Wylie’s Private Client team on 02890 200050. As we always say, planning ahead just makes sense, both for you and your loved ones.