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What is an enduring power of attorney?
An enduring power of attorney (EPA) is a document that gives another person the legal authority to make decisions on your behalf if you become incapacitated.
Public awareness of the ability to make an EPA is regrettably low, and even those who do know about them often think they are needed only for older persons who are at risk of age-related decline in functioning.
While an EPA certainly is appropriate for that purpose, the reality is that every adult should consider making an EPA because an accident or sudden illness can occur at any stage of life.
What are the different types of enduring power of attorney?
The law provides for two different types of EPA: one for property matters, and another for personal care and welfare. Your personal care and welfare attorney can make decisions about things such as where you live and help ensure that you are receiving proper care, while your property attorney will make decisions about and manage your finances.
Your personal care and welfare and property attorneys can be the same person or a different person can be appointed for each role.
By law, a personal care and welfare EPA can only come into effect if you lose mental capacity. In the case of a property EPA, you can decide whether you wish it to come into effect immediately upon signing or only when you become mentally incapable.
Signing an enduring power of attorney
You can only sign an EPA while you are competent to make decisions for yourself, and if there is any question about your ability to do so, your lawyer might discuss arranging a certificate of mental capacity from your doctor first. If a person doesn’t have the capacity to sign an EPA, then an application will need to be made to the Family Court for roughly equivalent court orders.
Because of the significant authority that is granted to someone else under an EPA, the law imposes strict requirements regarding the preparation, context and execution of the documents. If these formalities are not strictly followed, the EPA will be invalid.
Next steps
We’re happy to assist people who are thinking of putting a property and/or personal care and welfare EPA in place. We’ll explain the various options and terms of appointment that can be modified to suit your circumstances and wishes, and help setup arrangements that will provide you with peace of mind and security.
Contact us today if you want to discuss making an enduring power of attorney.