What is an Enduring Power of Attorney and why might I need one?

June 1, 2023




What is an Enduring Power of Attorney and why might I need one?

If you’re thinking about creating an enduring power of attorney (EPA), you need to understand why they’re necessary and that they need to be in place before you need to use them.

An EPA gives legal authority for management of your affairs to a person or people. An EPA is valid while you are alive, unlike a will, which comes into effect after your death. EPAs require forward planning so that you have them in place well before they need to be used.

What authority does an EPA give?

An EPA gives legal authority to a person or people to manage your affairs if you are unable to do so yourself. There are two types of EPA - one for your personal care and welfare; the second is to look after your property.

In an EPA, you are referred to as the “Donor”, and the person or people you appoint to make decisions on your behalf is referred to as your “Attorney”.

Why should I have an EPA before I need it?

If you are involved in an accident, develop a serious illness, become mentally incapable for any reason, you may be unable to make or communicate decisions yourself. Unfortunately, your partner or family cannot automatically make decisions for you if you are unable to, hence the need for an EPA.

If you become incapacitated and do not have an EPA in place, an application must be made to the Family Court for ‘Orders to have a Welfare Guardian and/or Property Manager Appointed’ on your behalf. This is not a quick or inexpensive process and leaves you without someone who can legally look after your welfare and property when you need it the most.

It is essential that an EPA is in place before you need to use it; without one it becomes difficult for your family and loved ones to make sure you receive the care and support you need.

What is an EPA for Personal Care and Welfare?

An EPA for your personal care and welfare means your Attorney (the person or people you appointed in your EPA) can make decisions for your personal care and wellbeing. This can include the care you receive, the medical treatment you receive, and where you live, including rest home care if you require it.

Your Attorney cannot refuse lifesaving medical treatment on your behalf, they cannot consent to you taking part in medical experimentation, and they cannot make any decision about marriage, divorce, or adoption on your behalf.

This EPA can only be invoked if you become mentally incapable. The decision that you have lost capacity cannot be made by your Attorney, it must be made by a relevant heath practitioner.

What is an EPA for Property?

An EPA for property relates to your assets and property, including any financial assets such as your bank accounts, investments, or to specific property that you itemise in your EPA. Your Attorney(s) can make decisions relating to the care and management of your property if you are unable to. Your property Attorney can help by paying your bills, managing your banking, signing documents on your behalf, and making decisions about your property when required. However, unlike the EPA for your personal care and welfare which only comes into effect once you’ve lost capacity, an EPA for property takes effect at any time you choose, either:

  1. while you are mentally capable and continues if you lose capacity; or
  2. only once you have lost capacity.

If you decide to go with option 1 and have an accident and are still mentally but not physically capable of dealing with your property or paying your bills while you are injured, then your appointed Attorney can do this on your behalf until you are back on your feet.

If you decide to go with option two, your Attorney will take over decision making for your property only once a doctor has certified that you have lost mental capacity.

Can I change or cancel an EPA?

As long as you have mental capacity, you can change or cancel (revoke) your EPAs at any time. If you do decide to revoke or change your EPA, you should advise your Attorney(s) of this decision in writing so there is no misunderstanding.

What should I know before I start the process?

You need to appoint a person (or persons) when you set up your EPAs and they’ll be referred to as your Attorney. If you’re setting up both an EPA for your personal care and welfare and an EPA for your property, you can appoint the same person or people, or different people.

It is your decision who you choose to appoint. This person does not need to be a family member, however, they must be at least 20 years of age, not be bankrupt, and not be suffering from any form of incapacity themselves.

Whilst your appointed Attorney has the power to make decisions for you, the Attorney must act in your best interests, in accordance with the Protection of Personal and Property Rights Act 1988. Your Attorney must always consult with you as far as possible before making any decision on your behalf and should encourage you to act on your own behalf as much as you can. If you or any interested person is concerned that your Attorney is not acting appropriately then the Family Court is able to intervene.

What to do before you meet with us

You need to know who you would like to appoint as your Attorney(s) and whether you want to appoint a backup person if your chosen Attorney(s) are unable to act for you. You should also speak to the person or people you want to appoint to make sure they are willing to carry out this role for you.

You should also consider whether you want your Attorney(s) to consult or provide information to anyone else about the decisions they are making/have made. You may include any restrictions or special directions within your EPAs for your Attorney(s) to follow.

Setting up an EPA

If you wish to discuss setting up EPA’s, get in touch with us for an appointment where we can discuss your options, answer any questions, and, once you’re ready, prepare your EPAs.