Enduring Powers of Attorney

Having up-to-date Enduring Powers of Attorney (“EPA”) is a fundamental aspect of planning for the uncertainties of life. Regardless of your age, you never know when you may be unable to make decisions for yourself.  You can lose mental capacity for a variety of reasons. For example, an accident or a medical condition. EPAs are a set of legal documents that appoint someone to make decisions on your behalf for circumstances where you are unable to do so yourself or in the case of property matters, at your discretion.

There are two documents within a set of EPAs. One relating to your personal care and welfare and the other relating to your property. In these documents, you are referred to as the donor, and the person you are appointing to act on your behalf, the attorney.

EPA
Welfare

The person you appoint as your attorney for personal care and welfare will only make decisions after a medical professional has deemed you incapable of making your own. These decisions may relate to any medical treatment or care that you may need. You can only appoint one attorney to act on your behalf. However, you are able to appoint a backup attorney(s) to act if your appointed attorney is no longer able.

EPA
Property

The person you appoint as a property attorney(s) handles decisions relating to but not limited to your assets, bank/utility accounts, and investments. An EPA in relation to property can come into effect straight away whilst you are mentally capable (if you wish) or only come into effect when you have been deemed mentally incapable by a medical professional. You can appoint several attorneys to act at once and direct whether these attorneys must act together or can act separately.

On both documents within a set of EPA, you are able to provide your attorneys with guidelines on how they should act. For example:

• You can set restrictions on how an attorney should act or provide specific instructions on decisions that you would like made.

• You are able to instruct your attorneys to consult with specific people and inform your family and friends of any decision that has been made.

If you do not have EPAs in place and you lose mental capacity, your family or friends can apply to the Family Court for an order appointing a person to manage your affairs. This person/s is called a welfare guardian and/or property manager. An application to the Family Court is costly and time-consuming when compared to the preparation of EPAs. A Judge may not know who you most trust to manage your affairs and is guided by the applicant.

EPAs are documents that we all should put in place now, whilst we are capable of doing so, to ensure that our most trusted person is appointed. That way, should something unexpected occur, your attorney is ready to make decisions on your behalf immediately. You should discuss the preparation of such documents with your lawyer.