Enduring Power of Attorneys: A Brief Guide

Life can be uncertain and we never know what is just around the corner. No matter what age you are, anyone could have an accident or become seriously ill. In these circumstances, someone needs to step in and make sure the bills are paid, the kids are looked after and you are being cared for properly by the people around you making decisions.

An Enduring Power of Attorney (“EPA”) is a document which appoints someone to make decisions on your behalf or sign documents for you, in the event that you become incapacitated. In this document, you are known as the “donor” and the person that you appoint to act on your behalf is known as the “attorney”. An attorney can be any person of your choosing who you trust to carry out your wishes; however, they must be over the age of 20 and mentally capable. You also have the ability to appoint more than one attorney to manage your affairs; however, you must specify whether all of the attorneys have to agree on decisions or if any of the attorneys can act individually. In addition, you can name successor attorneys, in the event that your first choice passes away or becomes mentally incapacitated themselves.

There are two different types of EPAs, one which relates to property and one which relates to personal care and welfare. The property EPA relates to everything you own, including property, bank accounts, investments and chattels, whereas the personal care and welfare EPA relates to the way you are cared for and medical related decisions. With a property EPA, you have the choice whether the EPA can be invoked only if you are mentally incapable or whether it can be effective as soon as you sign the EPA. This option is beneficial if you are overseas or temporarily unable to deal with your own finances but still have mental capacity to make decisions. A personal care and welfare EPA can be invoked when a medical practitioner undertakes an examination of you and determines and certifies that you are mentally incapable. Once this EPA kicks in, your attorney has the power to make decisions on your behalf that relate to anything regarding your care and welfare.

In the event you become incapacitated and you are unable to make decisions for yourself but you have not signed an EPA, then it may be necessary to apply to the Family Court for an order. The only people who can apply to the court for an order include a family relative, a social worker, a medical doctor or the manager of the facility where you are being cared for. The court then appoints an independent lawyer to look into matters and report to the court. Once this report is completed, the court makes a decision on who to appoint as your “manager” to look after your property and who to appoint as your “welfare guardian” to look after your personal care and welfare. This process can become costly and timely in addition to being stressful for your loved ones, so it’s better to be prepared and have an EPA ready to go, just in case the worst happens.

If you would like any help drafting an EPA for you or one of your family members, please give us a call and we’ll be happy to advise.