The fear that you may one day be unable to handle your own affairs due to serious illness is a live one. It therefore becomes important to have someone you can trust to act on your behalf in carrying out day-to-day business and other transactions. Creating a Power of Attorney is not only necessary as a precautionary step in the event of physical or mental incapacity, the document is also prepared for convenience in the event where the donor is going abroad or is unable to act for some other reason and wishes someone else to have the authority to act on his or her behalf.

Commonly people give an Attorney broad power over their finances, however, your can give your Attorney as much or as little power as you wish. Frequently, individuals create a Power of Attorney as part of estate planning to ensure that they have covered the possibility that they may need someone competent and trustworthy to handle their financial affairs should they become unable to do so themselves.

To ensure validity of the Power of Attorney you must be mentally competent when you sign it. This means that you understand the power that you are granting to your Attorney and the implications of having someone else make decisions for you. If there is a question about your mental competence it may be a good idea to have a physician evaluate you and certify in writing that you understand the document and the consequences of signing it.

The most common types of Power of Attorney in Jamaica are Ordinary Power of Attorney and Enduring Power of Attorney.

Ordinary Power of Attorney

An Ordinary Power of Attorney can be general or limited to specific affairs. It is created for a set period of time in cases where the donor is leaving the country or is unable to act for one reason or another and therefore wishes to leave matters in the hands of another person who would act on his or her behalf. Usually, an Ordinary Power of Attorney ends either at a specified time or upon the request of the donor at any time using a Deed of Revocation but is automatically revoked if the donor loses mental capacity.

Enduring Power of Attorney

An Enduring Power of Attorney can be used in the event of the donor’s mental incapacity. It allows the donor to appoint someone to look after his or her property or financial affairs should he or she become incapable of doing so at some time in the future. The authority to act continues even after the donor has become mentally incapable of managing his or her affairs.

When does a Power of Attorney end?

A Power of Attorney terminates upon the death of the donor of the power. You cannot give your Attorney authority to act after your death. Therefore, he or she cannot, under the authority of the instrument, act beyond the date of your death to pay your debts, make funeral arrangements or transfer your property to beneficiaries. If you want your Attorney to have the authority to wind up your affairs after your death you would be required to prepare a will naming that person as your executor.

What authority can you grant by way of a Power of Attorney?

Whether granting an Ordinary or Enduring power you may give your Attorney authority to do some or all of the following acts:

• Use your assets to pay your everyday expenses and those of your
  family
  
• Buy, sell, pay taxes on and mortgage real estate and other assets
  
• Collect benefits
  
• Make investments
  
• Handle transactions with financial institutions
  
• Buy and sell insurance policies
  
• Claim property you inherit or are otherwise entitled to
  
• Operate your business
  
• File and pay your taxes
  
• Make gifts on your behalf
  
• Represent you in court or hire someone to represent you.

Your Attorney is a fiduciary, required to act in your best interests with strict standards of honesty, loyalty and candor, regardless of the nature of the power given. He or she is expected to keep accurate financial records, safeguard your property, ensure that your property is kept separately and avoid conflicts of interest and “self-dealing”.

If your Attorney does not follow your instructions:

• You may revoke the Power of Attorney at any time and lodge the Deed of Revocation at the Island Records Office where the Power of Attorney was registered. The instrument must be registered where it is to be used in real estate transactions.
  
• You may inform him or her in writing that you are revoking the Power of Attorney and request the return of all copies of the said instrument.
  
• You may notify the relevant financial institutions that you have revoked the Power of Attorney.