Isle of Man: Power Of Attorney - May 2015

Last Updated: 12 May 2015
Article by   Simcocks

What is a Power of Attorney?

A Power of Attorney ("POA") is a document which allows a person to nominate others to act on his/her behalf and in his/her name. They are mainly used in two sets of circumstances – firstly when a person will be unavailable to sign documents at a crucial time, for instance when the person is due to complete on the sale or purchase of a house and is out of the country, and secondly when a person is worried about losing mental capacity and not able to manage his/her affairs.

In the first case, you would normally use what is called a general power of attorney. This would specify who is to be appointed and what he/she is authorised to do.

In the second case, where there is a risk of mental incapacity, the person giving the power, must execute an Enduring Power of Attorney ("EPA"). The main difference being that a POA will end if the Donor should become mentally incapable whereas an EPA will continue to be effective.

What is an Enduring Power of Attorney?

An EPA is a document which allows a person ("the Donor") who has mental capacity, to nominate other people ("the Attorneys") to act on his/her behalf and to permit the Donor to direct that the EPA shall continue to be in force notwithstanding the Donor subsequently losing mental capacity. If the Donor has already lost mental capacity then he/she will not be able to make an EPA as he/she will no longer have the mental capacity to understand or sign the document.

It is important to note that English Lasting Powers of Attorney can cover decisions regarding the donor's health but this is not the case with an Isle of Man EPA.

Due to conflicts of law issues, English Lasting Powers of Attorney tend not to be used in the Isle of Man, and overseas clients are usually recommended to put in place an Isle of

Man Enduring Power of Attorney where he/she has assets which are held in the Isle of Man, rather than have to argue with an Isle of Man financial institution regarding whether an English Lasting Power of Attorney is recognised in the Isle of Man.

When considering what is required of an EPA, there are a number of questions to ask:

  • Who do I want to act as my Attorney?
  • When do I want this EPA to become effective ie from the date of the EPA or only on the Donor losing mental capacity?
  • Do I want any limitations or restrictions on what property my Attorney(s) can deal with?
  • How many Attorney(s) do I want to appoint?

Who can be an Attorney?

Anyone who is over the age of 18 and not subject to bankruptcy proceedings can be an Attorney. They also need to be capable of understanding the terms of the EPA and their duties as an Attorney. There is no formal criteria regarding who may be appointed as an Attorney, and many people appoint family members or close personal friends. Many professionals such as Advocates and Accountants are willing to be appointed as attorney(s). They would be entitled to charge for their services whereas family members are not so entitled to charge

Under an EPA, it is usually a good idea to have at least one attorney who is familiar with the Donor and his/her affairs, as this will make matters much simpler should the Donor become mentally incapable.

When does an EPA come into effect?

The key consideration is whether the Donor of the EPA wishes the EPA to become effective before the Donor loses capacity, in which cases the EPA may come into effect upon the date it is signed by all parties. Alternatively the Donor may wish the EPA to become effective when the Donor loses capacity. If the Donor wishes the EPA to be effective immediately upon the signing of the EPA then the Attorney(s) will be able to deal with the Donor's property whilst the Donor is still mentally capable.

Alternatively, the EPA can be drafted in such a way as to not to come into effect until the Donor has lost mental capacity. This means that so long as the Donor is mentally capable of dealing with his/her own affairs, no one else will be able to deal with the Donor's property without his/her consent. This does not prevent the Donor from granting a separate power of attorney if the Donor wishes the attorney or some other person to be appointed to do acts on the Donor's behalf whilst he/she still has mental capacity.

Once is it established that the Donor has lost or is losing mental capacity, it is a requirement of the legislation for the Attorney(s) to apply to the Isle of Man Courts of

Justice for the EPA to be registered. The application will need to be accompanied by medical evidence that states the Donor has lost or is losing mental capacity. Written notice must be given to the Donor, joint and several attorneys (if any) and the Donor's nearest relatives (as specified in the Power of Attorney Act 1987) and a copy of the EPA is to be provided to any of those persons upon request.

When is an EPA useful?

An EPA is necessary should the Donor become or is becoming mentally incapable but it can also be useful when the Donor is physically incapable of managing his or her own affairs, although an existing general power of attorney can still be used in such circumstances.

What about any limitations and restrictions?

An EPA can be drafted in such a way as to include various restrictions or the limits on the Attorney(s) authority. For example a restriction that so long as the Donor is mentally capable, the Attorney(s) may not sell the Donor's house or a restriction that the EPA does not come into effect until the Donor loses mental capacity. Again, the restrictions reflect a trade-off between the flexibility to have the Attorney(s) do as much as possible to assist the Donor, and the Donor's wish to retain control whilst he/she is fit and well. An EPA can also be drafted so that the Attorney has general or wide form of authority over the Donor's assets or alternatively can be drafted so that the Attorney has specific authority to deal with those aspects of the Donor's affairs which have been specified in the EPA.

How many Attorneys?

One of the ways in which a Donor sometimes seeks to ensure protection is to appoint more than one Attorney so for example to appoint two Attorneys acting jointly in relation to the affairs of the Donor.

There are two ways in which Attorneys can be appointed. They can be appointed jointly, which means all decisions that are made in relation to the Donor and his/her property and affairs have to be made by all the Attorneys appointed to act, with them all being in agreement. Alternatively, Attorneys can be appointed to act jointly and severally. This means that the Attorneys can make decisions individually regarding the Donor's property and affairs, as well as together. How Attorneys are to be appointed must be carefully considered before signing the EPA.

What if a person loses capacity and there is no EPA in place?

If a person loses mental capacity and does not have an EPA in place then it can make it difficult for those closest to the person to be able to manage and handle his/her affairs.

Depending on how the assets of the person, who has lost capacity, are held, the only option may be to apply to the Isle of Man Courts for a mental health receiver to be appointed. The receiver can then deal with the person's affairs on his/her behalf. The cost of a receivership application generally outweighs the costs of signing and registering an EPA and the person who has lost capacity

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions