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Tue, 18th Dec 2018

EPOA - Important Life Admin for every adult

Life can be uncertain: an Enduring Power of Attorney (“EPOA”) is a document that appoints someone else, “your attorney”, to make decisions on your behalf if you are unable to.  Accident, illness, or hospitalisation can often come out of nowhere, and someone still needs to pay the mortgage and other bills, and make decisions about what care you need. 

Whereas a Will comes into force when you die, an Enduring Power of Attorney comes into force when you are still alive but unable to act.    

What is an Enduring Power of Attorney?

There are two different types of EPOA:

  1. Personal Care and Welfare. This enables your attorney to act in respect of your medical matters and make decisions regarding your care and welfare.  You can only have one attorney for personal care and welfare, and they can only act if you become mentally incapable.  Most Aged Care Facilities require any prospective residents to have EPOAs in place before they are admitted.  
  2. Property. The Property EPOA allows your attorney or attorneys (it can be more than one person for property) to act in respect of your property affairs.  ‘Property’ covers everything you own, but you can limit the EPOA to only apply to specific property if you wish.  You can decide whether you want your Property EPOA to come into effect immediately, or only when you become mentally incapable. 

Already lost mental capacity?

If an EPOA is required, i.e. in the case of many Retirement Homes, but the “donor” (the person giving the power to act on their behalf to someone else) has already lost mental capacity, then an application to the Court has to be made.  The Court can appoint Property Managers and/ or Welfare Guardians, who act like attorneys under EPOAs.  However, the Court process is much, much more time consuming and expensive than preparing an EPOA before you lose mental capacity.

Because of the common Aged Care Facility requirement, we often see elderly people regarding EPOAs.  However if there is any doubt regarding mental capacity, medical reports are required, adding further time and cost.  It really is better to have the EPOAs in place before this becomes an issue.    

 

Can’t my partner just sign?

It’s a common misunderstanding that partners can sign everything on each other’s behalf.  While this is largely true for jointly owned property - where both of your names are listed as owners - it isn’t the case for accounts, policies or possessions held in only your name, regardless of whether you treat it as both of your property.   

 How, when, where?

EPOAs give someone else a significant amount of your personal powers and decision-making, and are therefore an important legal document with strict rules around them.  You have to be over 18 to sign an EPOA and competent to make your own decisions.  There are laws around who can witness the EPOA documents (lawyers and some other specifically approved people).  We advise all adults to have EPOAs in place; they are a small “life admin” task that can save an enormous amount of stress, time and cost if the situation arises where they are required.  Particular times in your life you should consider having an EPOA, or updating an existing one:

  • Getting married, separated or divorced
  • Entering into or ending a de facto relationship
  • Travelling overseas
  • Buying a house
  • If you are experiencing health concerns or failing health
  • If it is possible that you may be moved into an aged care facility in the near future

 Court Review

If your attorney does something that you (when you have mental capacity), or someone else with an interest doesn’t agree with, or if the attorney wants some advice about using their powers, the Court can be asked to step in.  The Court can give directions – for example, about accounts to be kept by the attorney, or who will pay for the attorney’s expenses; the Court can also take action in respect of the EPOA, for example - decide whether a person is suitable to act as attorney or whether a will can be made for the donor; or the Court can review the attorney’s decision.      

Talk to us about getting your Enduring Powers of Attorney sorted.

  • Posted By: Laurel Simm on Tue, 18th Dec 2018 @ 09:16:44

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