Bermuda: Planning For The Future With A Power Of Attorney

Last Updated: 9 November 2012
Article by Michael Mello

Everyone should execute a Power of Attorney ("Power"), an adaptable legal tool that helps you to plan for the future.

A Power is particularly useful in estate planning as it allows you to plan for the possibility of becoming incapacitated and unable to make day to day as well as estate planning decisions on your own behalf.

A Power is a deed by which a person confers power on another to act on their behalf. The person granting the Power is usually called the "Donor" and the person authorised to act on the Donor's behalf is usually called the "Donee" or the "Attorney".

After granting a Power, the Donor can continue to act in his or her own affairs without restriction and the Donee may act when requested to do so or when required due to the Donor's inability to act.

A Power can be general so that the Donee can conduct any sort of business on behalf of the Donor, or it may be limited to one particular transaction, or a series of particular transactions, provided for in the document.

A Power may also be limited in time, remaining in force for a specified period. Powers are frequently granted when a person is going abroad for a long period of time, may be difficult to contact while abroad, or when an important transaction is due to close while the Donor is otherwise unavailable.

The difference between an ordinary Power ("Ordinary Power") and an enduring Power ("Enduring Power") is that an Ordinary Power will terminate automatically if the Donor loses his or her capacity, whereas an Enduring Power will remain valid and effectual during any subsequent legal incapacity of the Donor. In both cases, the bankruptcy of the Donor will automatically terminate the Power -- and the bankruptcy of the Donee could terminate the Power, depending on the circumstances.

Enduring Powers are an essential tool for elderly persons, in particular. However, everybody should, as a matter of good estate planning, make a Power to appoint a Donee to act for them to provide for the possibility that they may become incapacitated accidently or by disease. It is always wise to plan for the future.

An advantage of using an Enduring Power is that it will avoid a court application for Receivership should a person lose their legal capacity when holding assets in their sole name. Without an Enduring Power, the spouse or family members of the incapacitated person will not be able to act on such person's behalf and must apply to the Supreme Court of Bermuda under Part IV of the Mental Health Act 1968 to be appointed as the Receiver of the incapacitated person.

Two types of Enduring Powers are used in Bermuda. The first is the usual Enduring Power, which comes into full effect on the date it is signed by the Donor and remains in force until such time as the Donor revokes the Enduring Power or until the death of the Donor. The second type is an Enduring Power subject to the issuance of a medical certificate. This type of Enduring Power is immediately valid, but does not become effective until such time as the Donor's physician certifies that the Donor is not capable of managing his or her own affairs. It remains effective until such time as the Donor's physician certifies that the Donor is once again capable of looking after his or her own affairs.

Clearly, a Power gives the Donee tremendous power over the affairs of the Donor; for that reason, a Donor should always appoint a person they can fully trust. In situations where the Donor and Donee are related, the Donee will frequently not expect to be paid for work done in pursuance of the Power. However, if there is no suitable relative or friend, a professional person may be appointed but they will expect to be paid as the Donee of the Power. There is no warranty that a professional person will be trustworthy and care should be taken whom you select to act as the Donee of your Power, both from amongst professionals and family and friends.

Powers are usually not necessary if a husband and wife, or parent and child, have all of the assets in joint names. That is because the joint owner will have access to the assets on the incapacity of the other joint owner. Similarly, a Power would not be required if an individual's only assets are monies in a bank for which there is an authorised signatory. However, there is the risk that such a bank authority will be revoked by the subsequent legal incapacity of the account holder and any transaction carried out thereafter would be deemed invalid.

Although it is not legally necessary to register a Power in order for it to be effective, unlimited Ordinary and Enduring Powers are commonly registered because the act of registration serves as public notice that the Power exists and is effective. The registration of, and access by the public to, Powers and other deeds is provided for by the Registrar-General (Recording of Documents) Act 1955. A Deed of Revocation by the Donor revoking a Power should also be registered with the office of the Registrar-General, when the revoked Power is so marked.

As with all complex matters of law, it is sensible to consult an expert in the area.

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
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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