Dear Claudine,

My wife and I made our Wills many years ago. My wife has been diagnosed that she is in the early stages of Motor Neurone Disease and wants me to make decisions in relation to her health in the event that she is incapable of giving her consent to treatment. Our doctor believes that my wife will deteriorate a lot further in the next twelve months and has advised that it would be appropriate for my wife to sign a Power of Attorney. Can you please advise me how this can be done.

Thank you,

Patrick

Dear Patrick,

Thank you very much for your letter. A Power of Attorney is a legal document which can be created by a person called “the Donor”, during his or her lifetime when he or she is in good mental health. It enables the Donor to appoint a person called “an Attorney”, to make decisions on the Donor’s behalf if he or she is mentally incapacitated. If a person is mentally incapacitated and if he or she has not signed a Power of Attorney then his or her assets and property are generally frozen and cannot be used by anybody else unless they are jointly owned. There are two types of Power of Attorney, a) Power of Attorney which gives either a specific or a general power and ceases as soon as the Donor becomes incapacitated or b) An Enduring Power of Attorney(EPA) which is a legal document specifically appointing a person to make decisions in relation to the Donor’s health, property and assets. This power only comes into effect when the Donor is certified by a medical practitioner that he or she is incapacitated and are therefore unable to make the decisions themself. An EPA affords a person a lot of security, if they become mentally incapacitated, then their Attorney will make the important decisions regarding their health, property and assets as well as “personal care decisions”. A person can appoint anyone they wish to be their Attorney including a spouse, family member, friend or colleague. The creation of an Enduring Power of Attorney is complex as it involves the transfer of considerable powers from one individual to another. It will require the involvement of a Solicitor and a Medical Practitioner. The Donor is required to notify at least two people, generally family members, of his or her intention to create this document. An Enduring Power of Attorney can only come into force when it has been registered by the Attorney when they make an Application to the High Court and provided they have a medical certificate specifically certifying that the Donor is now incapable of managing his or her own affairs. I would advise your wife and you to immediately consult with your wife’s GP, and request his/her opinion as to whether he/she is able to verify that your wife has the mental capacity to understand the effect of executing an EPA. If your wife’s GP confirms to your wife that she indeed has the requisite mental capacity, then I would advise your wife and you to immediately consult with a solicitor if your wife wishes to create an EPA.

I sincerely hope that the above is helpful to you.

With Every Good Wish.

Claudine