WHAT IS AN ENDURING POWER OF ATTORNEY (EPOA)?
An EPOA is a legal document that gives someone you trust (your Attorney) the power to make decisions about your life if you can’t. There are two different types of EPOA:
(a) Enduring Power of Attorney in relation to Property. Your Attorney will be able to sign things on your behalf and deal with your assets.
(b) Enduring Power of Attorney in relation to Personal Care and Welfare. Your Attorney will be able to make decisions about your health and welfare.
IS AN EPOA DIFFERENT TO A REGULAR POWER OF ATTORNEY?
A regular Power of Attorney (POA) can only be used while you still have mental capacity. If you can’t make decisions for yourself, a POA will become void and it will then be too late to enter into a new EPOA (because you need to be able to understand what you are signing to enter into an EPOA).
Because they are much more powerful, you will need to jump through a few more hoops when entering into EPOAs, to ensure you fully understand the rights you give to your Attorney(s).
HOW DO I PUT AN EPOA IN PLACE?
Your Lawyer or Legal Executive will help you prepare your EPOAs to cater for your particular circumstances.
EPOAs must be signed in person with your Lawyer or Legal Executive, who will discuss the document with you in detail and certify that they have explained the terms and consequences of the EPOA to you. Without this certificate, the EPOA will not be valid. Your attorneys must also sign, but they do not need to meet with a lawyer.
An EPOA in relation to Personal Care and Welfare can only be used by your Attorney if you become ‘mentally incapable’ – as certified by a medical professional.
An EPOA in relation to Property can either come into force on signing, or if you become ‘mentally incapable’. You get to make this choice when you prepare your EPOA.
WHAT HAPPENS IF I NEED AN EPOA, BUT I DON’T HAVE ONE?
If you lose your mental capacity and do not have EPOAs, your family will have no legal power to deal with your assets or make decisions about your healthcare. This can leave them in a tough spot.
If your family need the power to deal with your assets or make decisions about your healthcare once you’ve lost mental capacity, your family would need to apply to the Family Court to have someone appointed as a property attorney and/or a welfare guardian. This can be expensive and time-consuming, especially when the family don’t agree on who would be the most appropriate person to apply.
There are additional administrative steps and costs for each of the property attorney and welfare guardian, as they need to demonstrate to the Court from time to time that it is still appropriate that their appointment continues. This can be frustrating for families if you lose mental capacity at a relatively young age, and the appointment of a property attorney and/or a welfare guardian is needed for many years.
Having proper EPOAs in place is much easier (and cheaper) for your family in the long run.
CAN YOU GIVE ME AN EXAMPLE?
Sure. Suppose Gran and Grandpa want to sell their home and move into a residential care facility, but Grandpa hasn't been doing so well.
In that case, Gran and Grandpa will need to sign an agreement and transfer documents to sell their home and will need to sign a new Occupation Right Agreement for the new facility. Agreements and transfer documents obviously can't be signed by Grandpa if he has taken a turn for the worse, and loses his mental capacity. The family is then stuck with a property that can only be sold with a court order - taking valuable time, and costing money, to give Gran and Grandpa the result they want.
The problem of course, is that people can lose mental capacity gradually, or all at once, and we often can't predict when it's going to happen. Our advice - if you think you need a Will, you probably also need EPOAs.
CAN I HAVE MORE THAN ONE ATTORNEY?
Yes, you can appoint multiple Property attorneys to act together or separately. Only one Care and Welfare attorney can act at a time. In both cases, you can list as many backups as you would like.
When preparing EPOAs you can require that your Attorneys consult particular people before a decision is made, and you can require that they disclose to particular people once a decision has been made.