By a continuing power of attorney, you ensure a guardianship according to your wishes
Partner, Attorney at law, Trained on the Bench
A continuing power of attorney enables your individual wishes to be fulfilled when you need support to manage your affairs. A public guardian appointed by the authority under the Guardianship Act only does what the law orders.
“It would be good for people to understand the opportunities a continuing power of attorney made in time provides”, says Harriet Rydberg, a lawyer who runs Procopé Private, a group specializing in wealth issues of individuals.
More and more people are determining the fate of their property via testament. However, many fail to acknowledge that it is equally important to prepare for situations where one is not capable of managing their own affairs while alive. Not preparing for such situations can lead, in the worst case, to important affairs being unattended or managed in a way the person would not want them to be managed.
There are multiple advantages to a continuing power of attorney
When organizing guardianship via a continuing power of attorney one achieves many significant advantages compared to a public guardian appointed under the Guardianship Act.
In order for the continuing power of attorney to take effect, the Digital and Population Data Services Agency needs to register it. If the person in need of guardianship has not entered the power of attorney, the matter shall be referred to the authorities as a petitionary matter. In this case, a person is assigned a guardian under the Guardianship Act. No one needing a guardianship is therefore left without one, but a continuing power of attorney is a more effective way to get the guardianship into force.
The actions of an assignee are much more flexible and less bureaucratic than those of a public guardian under the Guardianship Act. For example, the assignee does not, in principle, require authorization from the authorities to sell the client’s assets. In addition, regulatory oversight is lighter for the assignee, and they are not required to make annual accounts to the authorities for the management of assets.
Continuing power of attorney facilitates taking care of affairs
By a power of attorney, the assignor ensures that the management of affairs is not stuck due to the absence of authority. For example, a public guardian cannot, in principle, sell a summer house left standing unless it needs to be liquidated for the purpose of serving current payments. Even then, it is a lengthy process, as the guardian must apply for the approval of the Digital and Population Data ServicesAgency.
If a public guardian under the Guardianship Act sees no need for their client to sell the property, the summer house may stand untended for years. Witha continuing power of attorney, one can authorize a person they know to handle the sale of the property. Similarly, the power of attorney may be subjected to precise conditions, for example, that the heir authorized to sell the property must obtain the consent of the other siblings.
In a continuing power of attorney assignments can be customized
One can tailor the contents of a power of attorney as precisely as one sees reasonable. The public guardian under the Guardianship Act, on the other hand, performs exactly the functions ordered by law. In addition, a public guardian would not even have the time to do more, since they may have as many as 300 to 400 clients. This means that a public guardian has about half a day a year to run the affairs of one client.
In a continuing power of attorney, one is allowed to choose the person they want to handle their most diverse matters, for example, instruct that they want to get a pedicure each month. When it comes to the selection of a guardian under the Guardianship Act, the client might no longer be able to influence the selection process.
“The important thing is to discuss beforehand with the assignee whether they agree to be the manager of affairs. It is a good idea to involve the assignee in discussions with one’s lawyer so that the assignee certainly understands what they are committing themselves to and what their responsibilities are,” says Rydberg.
Through the continuing power of attorney, one may also authorize different persons to perform different tasks. For example, one of the assignor’s children may be mandated to manage financial affairs and the other the assignor’s personal well-being.
The continuing power of attorney must be done while one is healthy
A continuing power of attorney may go undone for a number of reasons. A person can experience that they are still perfectly able to manage their own affairs.
However, unfortunate situations sometimes come out of the blue. Anyone can face the need to have an assignee for themselves because of, say, a car accident. Therefore, it may be necessary to draw up a continuing power of attorney as soon as the person becomes of age.
If a person becomes legally incapacitated for one reason or another, it is too late to authorize anyone.
“The continuing power of attorney must have two witnesses that are not disqualified. I personally wouldn’t testify if I found that the assignor doesn’t understand what they are doing. Then the only option is to apply for a guardian under the Guardianship Act,” says Rydberg.
It is important to arrange things for a rainy day
Procopé Private, led by Harriet Rydberg, helps individuals with legal issues such as drafting wills, continuing powers of attorney and prenuptial agreements.
It is useful for everyone to consider how their affairs should be managed if they themselves were incapable of handling them. Making a continuing power of attorney can bring peace of mind that matters will be taken care of even in the event of something unexpected.
Difficult things are worth bravely considering when things are still well. A will and a continuing power of attorney may seem topical only when one gets sick, although in this case it may be too late for them to be drawn up. Similarly, the necessity of a prenuptial agreement may come to mind only when the divorce is already pending.
International connections are also important to consider. Legislation might vary so significantly in different countries that a person’s will and purpose completely change shape.
“The differences are significant even in neighboring countries. In Sweden, the spouse inherits their partner, while in Finland the property goes to the children. When it comes to international connections, it is especially important to ensure that family law documents are in order,” says Rydberg.
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