Enduring Power of Attorney

An Enduring Power of Attorney (EPA) is a legal document where you (the 'Donor') appoint a trusted person (the 'Attorney') to act on your behalf. EPAs are different to a general power of attorney, which cease to have effect if the person who gave the power of attorney loses mental capacity.

There are two types of EPAs:

1. A Personal Care and Welfare EPA – this gives someone the power to make decisions about your personal care and welfare. This includes decisions about medical treatment, hospitalisation and other personal care matters. You can appoint only one attorney to act and one substitute attorney. This type of EPA only comes into effect if a medical practitioner certifies or the Family Court decides that you are mentally incapable to make decisions, understand the nature of those decisions, foresee the consequences of those decisions or lack the capacity to communicate the decisions.

2. A Property EPA – this gives a person the power to administer and manage your financial and property affairs. This EPA can come into force either if you become mentally incompetent (on a medical practitioner's certification) or, if you prefer, it can come into force immediately so it is available to be acted upon should you wish your attorney to handle a business matter for you. You may appoint several attorneys or substitute attorneys who can act jointly or severally.
   Every adult should have EPAs in place. Sudden illness and accidents affecting mental capacity can happen to anyone. There are some key events in life that should cause you to consider an EPA (or, if you already have one, to update it), for instance:

• Getting married, separated or divorced;

• Entering into or ending a de facto relationship;

• Travelling overseas;

• Buying a house;

• If you are experiencing health concerns or failing health; or

• If it is possible that you may be moving into an aged care facility in the near future.

If you are considering putting an EPA in place, you could consider the following:

1. Who would you like to be your attorney, why, and what do you want them to be able to decide on your behalf? It is important to choose someone you trust who will act in your best interests. While you can appoint the same person to be your attorney for both Personal Care EPA and Property EPA, we suggest that different people are appointed as different skill sets are required. The two attorneys will need to work together if making decisions on your behalf, so it is important to appoint attorneys who get along with each other.

2. How might your attorney be assisted by other parties (e.g. doctor or certain family members)? And would they need to consult with anyone about the decisions being made or provide information?

3. If you are considering an EPA for property, when you would like this to come into effect - straight away, on a certain date or in the event you become mentally incapable?

4. Who would you want to replace your attorney if your first choice is unavailable?
   The signature of the person granting an EPA must be witnessed by a lawyer, a legal executive working in a law firm or an authorised officer of a trustee corporation and that witness must certify that the Donor understands the effects and implications of the EPA for it to be valid.

Anyone accepting appointment as an attorney under an EPA (whether a friend, family member or professional) will need to fully understand their obligations.

The appointment of an EPA attorney is an important decision and not to be entered into without full understanding. We can assist you to understand what is involved in putting an EPA in place and making sure the legal requirements are met.

Reach out to our team below to get started.