In the intricate tapestry of life, there exists a vulnerability that transcends age and status—the loss of mental capacity.
This could happen at any age and could be due to an accident or an illness. Imagine a scenario where the compass of your mind begins to falter, leaving you adrift in a sea of uncertainty. Now, picture this without the guiding hand of an Enduring Power of Attorney (EPA), a legal lifebuoy that many neglect until it's too late. The assumption is that Enduring Powers of Attorney are for the elderly, this is a complete misconception of Enduring Powers of Attorney which can only be put in place whilst you have mental capacity. If you leave it too late and you lose mental capacity, you cannot sign an Enduring Power of Attorney and you will then be on the very complicated and costly road through the Courts via a Mental Health Receivership Application.
This blog will unravel the narrative of what unfolds when the unexpected storm of incapacity strikes, diving into the tumultuous consequences of not having a robust EPA in place. From the youngest to the eldest, no one is immune to the whims of fate, making this a story that resonates with all. Join us on this exploration of the unchartered waters of life without an Enduring Power of Attorney, and let it be the call to action that sets you on the path to safeguarding your future.
What impact does loss in mental capacity have on my legal rights
If you were to have an accident or an illness which resulted in a doctor reporting that you are no longer capable of managing your own affairs due to reason of mental disorder, you no longer have any legal rights to make decisions or sign for anything. Therefore, someone has to take over managing your personal and financial affairs for you legally. If you make an Enduring Power of Attorney whilst you have mental capacity you can select any person or persons (you can have up to 4 attorneys) whom you choose to take up this role and they can reside anywhere in the world (although practically it is better if they are based where you reside).
What happens without an Enduring Power of Attorney in Place
Without an Enduring Power of Attorney in place, in the event of your mental incapacity someone would need to apply for a Mental Health Receivership through the Courts which is complex, costly and can cause significant stress to your loved ones. There are strict rules behind a Mental Health Receivership Application whereby unless in extenuating circumstances, it can only be one person appointed as your Mental Health Receiver and this person must reside on the Isle of Man. Furthermore, that person has to submit accounts to the Courts every year to evidence what monies have been spent on what. As you can imagine for married couples this can prove to be very difficult as you need to evidence what money out of any joint funds you have used for yourself and what you have used for your mentally incapacitated spouse. Furthermore, if you wish to change any assets held jointly with the person who has lost mental capacity or their own sole assets, for example selling a home, you need to apply to court for permission to do so. This causes significant time, costs with complex Court Applications.
Furthermore, if you do not have any family on the Isle of Man and there is no one who could apply to be your Mental Health Receiver, the Courts will select a Mental Health Receiver for you from the list of advocates available to take up this complex role. Any court and professional charges for a professional Receiver are deducted from your own finances.
Does the Enduring Power of Attorney cover my welfare?
Enduring Powers of Attorney on the Isle of Man are limited to personal and financial affairs only and do not cover welfare. We are hoping that Lasting Powers of Attorney, which do cover welfare, may come into effect at some point on the Isle of Man, however at the moment we remain with the Enduring Powers of Attorney. Always ensure your next of kin at your GP surgery and the hospital are kept up to date.
Do I need an Enduring Power of Attorney if I have assets on the Isle of Man but live elsewhere?
In short, the answer is yes. Every jurisdiction has it’s own laws surrounding mental incapacity, therefore if you hold assets on the Isle of Man you should have an Isle of Man Enduring Power of Attorney in place to cover those assets to ensure that your selected attorneys can deal with those assets as quickly as possible and without unnecessary complications and additional costs that come with not having an Enduring Power of Attorney in place.
I live on the Isle of Man but have assets elsewhere – does my Enduring Power of Attorney cover those?
Your Enduring Power of Attorney only covers assets held on the Isle of Man. If you hold assets in other jurisdictions you should always obtain advice in the jurisdiction where you hold assets as they will be able to ensure that you have equivalent document in place to cover such assets in line with the law of such jurisdiction.
In conclusion, without an Enduring Power of Attorney your personal and financial affairs are left hanging in the balance with the haunting question of who will manage your life if you no longer can. In the absence of this legal safeguard, chaos looms. The emotional toll on loved ones, the potential financial jeopardy, and the loss of autonomy—are all threads in the looming storm.
Hopefully this blog will serve as a wake-up call, urging individuals of all ages to reflect on the importance of establishing an Enduring Power of Attorney as a crucial life preparation measure.
The process of getting an Enduring Power of Attorney in place is simple and we will come to you at your own home at a time that suits you including daytime / evening and weekends to help guide you to get what you need in place to protect you from the unknown
Please do contact DMW if we can help,
Debbie
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