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:
• 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 your are mentally incapable to make decisions, understand the nature of those decisions, foresee the consequences of those decisions or lacks the capacity to communicate the decisions.
• 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 you would like to be your attorney, why, and what 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. Consider how your attorney might be assisted by other parties (e.g. doctor or certain family members), and if they would 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 you would 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.
For more information or assistance about Enduring Powers of Attorney, please contact Samuel Ames, solicitor on (64 9) 486 9579 or [email protected]
Frequently Asked Questions
An Enduring Power of Attorney ('EPA') is a legal arrangement where one person ('the donor') authorises another person ('the attorney') to act on their behalf. An EPA can, depending on the donor's wishes, either grant the attorney wide general rights or rights limited by conditions and restrictions imposed by the donor.
Yes. The two types of EPAs are:
- EPA in relation to personal care and welfare – a donor may authorise their attorney to act in relation to the donor's personal care and welfare such as medical treatment and selection/admission of the donor into residential care or a rest home.
- EPA in relation to property – a donor may authorise their attorney to act in matters concerning the whole or a specified part of the donor's property. Unless restricted, this EPA can be used for any 'property' of the donor, including borrowing, operation of bank accounts, and almost all financial or property decisions the donor could otherwise make personally.
An EPA is like an insurance policy. If you lose capacity and you don't have an EPA there is no one who is able to make decisions on your behalf. This means that potentially members of your family will need to go to Court to get property and welfare orders.
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