Enduring Powers of Attorney
In the blink of an eye your entire life can be changed instantly. You could fall ill, become injured or be part of a horrific accident, that prevents you from being able to make your own decisions or deal with your own affairs. What do you do when that happens? Consider having Enduring Powers of Attorney (“EPA”) for these troubled moments.
What is an Enduring Powers of Attorney?
An EPA is a legal document where you (the “donor”) appoint a trusted person (the “attorney”) who is authorised to deal with your affairs on your behalf when you are unable or lose the capacity to do so yourself. This is different from a Power of Attorney which does not endure after the donor has lost the mental capacity to act on their own. It is a common misconception that an EPA extends after the donor dies, but this is untrue. The EPA ends as soon as the donor dies and it is your Will that takes effect to deal with your affairs after death. The Attorney is legally obligated to act on your behalf for your benefit with your best interest in mind
There are 2 forms of EPA: the one is in relation to Property; and the other relates to Personal Care and Welfare. It is up to the donor to dictate the extent or circumstances in which an attorney may act in both case or if consultation is required before an attorney may act.
Although it is best to speak to your lawyer on what these restrictions may be or how to stipulate them.
Property
An attorney appointed for an EPA in relation of property is authorised to manage your property affairs such as: managing your bank accounts, investments, paying your bills or selling your house. Generally, EPA in relation to property only comes into effect one a medical practitioner must certify that the donor lacks sufficient mental capacity to act. However, you can stipulate in the EPA in relation to property for the attorney to be allowed to act as soon as the EPA is signed. This can be effective if it is difficult to determine the donor’s mental capacity or if the status changes daily.
If you are worried about a singular person having too much control over your affairs you may jointly appoint two attorneys to act simultaneously or require them to consult or have advice before being allowed to act.
Personal Welfare and Care
An EPA in relation to Personal Welfare and care can only come into effect once a medical practitioner has certified the donor to lack mental capacity and can not be stipulated otherwise. This EPA authorises an attorney to act on behalf of the donor in matters that regard the donor’s personal health and care, which can include things such as life saving procedures, consent to a medical practitioner for a check up, what medical treatments they may have, where the donor lives such as a rest home.
Unlike an EPA in relation to property, only one attorney may act at a time, but you can still require them to consult a person you elect.
Do you need an EPA?
An EPA is like having insurance, you may never need it and you hope you won’t, but when something happens and you do need it, you’ll be glad you have it. It may never happen, but if you do lose your mental capacity, either due to an accident or otherwise, having an EPA in place can save your loved ones a lot of time and money.
A common misconception is that your spouse, partner or parents will be able to make these decisions when you are incapable, but that is unfortunately untrue. Your family or next of kin will have to apply to the Family court for authorisation in order to take care of you or manage your property related affairs. Such an order is not enduring either, and requires a review every 3 years. With an EPA the choice of attorney and how it is managed is yours and all that is required is for your attorney to show you lack mental capacity that is certified by a medical practitioner.
Things to consider
You’re never too young to get an EPA, if you’ve hit a milestone in your life such as buying your first house or starting a family. It can be quite beneficial to see a lawyer about granting EPA and maybe getting your Will drafted as well. It’s important you see a lawyer to explain to you what an EPA is and specifically what powers are being granted, and what restrictions or consultation requirements you may wish to have. A lawyer, legal executive or authorised trustee corporation must witness the signature of the donor in order for the EPA to be valid.
Should you require more information or would like to set up Enduring powers of Attorney, please get in touch with us.