Enduring Powers of Attorney
22 August 2024

Do you know why Enduring Powers of Attorney (EPAs) are important? Have you considered setting them up? Perhaps you’re waiting for the ‘right moment’. Regardless, planning ahead with EPAs ensures they’re ready well before you actually need them.


What are EPAs?

An EPA is a document that grants legal authority to someone to manage your affairs if you become unable to do so yourself. Unlike a will, which takes effect after your death, an EPA is active while you’re still alive. There are two types of EPAs, each serving a different purpose:


  • one to look after your personal care and welfare.
  • the other for managing your property.


In an EPA document, you are known as the ‘Donor’ and the person or people you appoint to make decisions on your behalf are called your ‘Attorney’.


Why do I need EPAs?

It’s crucial to have your EPAs set up before you need them; without them, it becomes challenging for your family and loved ones to ensure you get the care and support you require. If you’re in an accident, develop a serious illness, or become mentally incapacitated, you might not be able to make or communicate decisions yourself.


Many people mistakenly believe their partner or family can automatically make decisions for them in such situations. However, without EPAs in place, a Family Court application for ‘Orders to have a Welfare Guardian and/or Property Manager Appointed’ must be completed. This process is expensive and time-consuming, leaving you without someone who can legally manage your welfare and property when you need it most.

 

EPA for personal care and welfare

An EPA for personal care and welfare covers decisions related to your care and wellbeing. Your personal care and welfare Attorney can make decisions about your care, medical treatment, and living arrangements, including rest home care if needed. However, your Attorney cannot refuse lifesaving medical treatment on your behalf, consent to medical experimentation, or make decisions about marriage, divorce, or adoption for you.


An EPA for personal care and welfare can only be activated if you become mentally incapable. The determination of your mental incapacity must be made by a relevant health practitioner, not your Attorney.

 

EPA for property

An EPA for property covers decisions relating to the assets and property you own, including financial assets like bank accounts or investments, or specific property listed in your EPA. When you appoint an attorney or attorneys to manage your property, they can handle your property on your behalf if you are unable to do so.


Your property Attorney can assist by paying your bills, managing your banking, signing documents, and making decisions about your property as needed. Unlike the EPA for personal care and welfare, your EPA for property can take effect at a time of your choosing:


  1. While you are mentally capable and continue in effect if you lose capacity; or
  2. Only once you have lost capacity.


Choosing the first option ensures you’re covered if you have an accident and are still mentally capable but physically unable to manage your property or pay your bills while injured. In this case, your Attorney is authorised to pay your bills and keep things running smoothly until you recover.


If you choose the second option, your Attorney will take over decision-making only once a doctor has certified that you have lost mental capacity.

 

Can I change or cancel them?

You can revoke or partially revoke (cancel) your EPAs at any time while you have mental capacity. If you decide to revoke them, you should advise your Attorney(s) of this decision in writing.

 

What do I need to know before I start the process?

When setting up EPAs, you need to appoint a trusted person or people to act as your Attorney. This could be the same individual for both property and personal care and welfare, or you might choose different people for each responsibility. The choice is yours – the person you appoint does not have to be a family member. However, your Attorney(s) must be at least 20 years old, not bankrupt, and free from any form of incapacity.


Although your Attorney has the authority to make decisions on your behalf, the Protection of Personal and Property Rights Act 1988 ensures they act in your best interests. Your Attorney must consult with you as much as possible before making any decisions and should encourage you to act on your own behalf whenever you can. If you or any concerned party believes your Attorney is not acting appropriately, the Family Court can step in.

 

Things to think about before you set up EPAs

Consider who you would like to appoint as your attorney(s) and whether you want to designate a backup person in case your chosen attorney(s) are unable to act. Talk to the person or people you wish to appoint to ensure they are willing to take on this role. Also, think about whether you want your attorney(s) to consult with or provide information to anyone else regarding the decisions they are making or decisions you have made. You can include any restrictions or special instructions for your attorney(s) within your EPAs.


For personal care and welfare, only one attorney can act at a time, but it is recommended that you appoint an alternative attorney. For property, you can appoint more than one attorney at the same time as well as appointing alternatives. You can decide if you want them to act jointly or on their own or allow a combination of both.


Once you’ve made these initial decisions, contact a lawyer or legal executive to schedule an appointment. They will review your options, answer your questions and prepare your EPAs.

 

EPAs and wills

When setting up EPAs, you might also want to create a will or update your existing one at the same time - keeping in mind that EPAs are only applicable while you are alive. For further information on why you need a will and how to create one, see our article ‘Why it’s important to have a will’ here.

 

Get good advice from people you can trust

Our friendly team can explain the EPA process in plain English and advise you on what would work best for your specific circumstances. If you'd like to know more about EPAs, wills or estate planning, just give us a call  – we’re here to help.

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