When a woman’s husband suffered a stroke, life changed dramatically for the couple.  It became apparent that modifications to their property were required to accommodate the husband’s care.  However, the couple’s savings were held in a bank account of which the husband was the sole signatory.  The husband had lost mental capacity due to the stroke, and so could no longer manage their financial affairs, leaving the wife without access to the funds required.

It is very important to put an Enduring Power of Attorney (“EPOA”) in relation to Property matters in place while you have the capacity to do so (as well as an EPOA in Relation to Personal Care and Welfare).  The EPOA in relation to Property gives another person, your Attorney, authority to act  on your behalf in matters regarding your house, finances and other property assets in the event that you lose mental capacity.

How can a Property Enduring Power of Attorney help me take care of my loved ones if I lose capacity?

You need to be mindful that if you hold funds in your sole name your spouse or partner will not be able to access them if you lose mental capacity.  Therefore you need to allow your Attorney to use your personal funds for the benefit of your spouse (and any other loved ones as appropriate).  If the husband had provided for his Attorney to benefit his wife, the Attorney would have been able to give her access to funds needed to modify their home. Unfortunately without this authority, the wife had to take proceedings through the Court to be able to access the funds.

The EPOA in Relation to Property allows you to record your Attorney’s powers in making financial provisions for your spouse, partner or children as you would have done, had you possessed the capacity to do so in the “normal” course of providing for your family.  Unless you make these instructions explicit, your Attorney does not have the discretion to use your personal funds as they see fit.

It is crucial that EPOA documents are drafted in a way that gives legal standing to your intentions, not only in respect of your personal well-being but also for providing for your family as you would have done.  If you would like to put EPOAs in place, or are considering updating your existing EPOAs, see your legal advisor for advice that best suits your situation. 

Therese Greenlees
Legal Executive