What is an Enduring Power of Attorney?
An Enduring Power of Attorney (“EPA”) is a document that allows the person you appoint to make decisions on your behalf or sign documents for you if you are no longer able to make decisions for yourself.
There are two types of EPAs – Property and Personal Care and Welfare.
Your property attorney or attorneys is responsible for making all decisions and signing documents that involve your property, including your finances. You can appoint one or more property attorneys. You can also elect whether the EPA comes into force immediately or only if you lose capacity.
Your welfare attorney is responsible for making decisions about your personal matters. You can only appoint one welfare attorney. A welfare attorney can only act if a doctor certifies that you no longer have capacity to make decisions for yourself.
Why Do I Need an Enduring Power of Attorney?
People often assume that if they lose mental capacity, their family members will automatically be able to act on their behalf. This is not correct. If you lose capacity without an EPA in place, your family must apply to the Family Court for a manager to be appointed, to permit the manager to act on your behalf. This can be time consuming and expensive. It also opens the possibility of the Court appointing someone to manage your affairs who you would not have chosen yourself.
Wouldn’t This Allow My Family to Trade on My Account Without My Permission?
EPAs give your attorney(s) wide powers to act and therefore it is very important that you only appoint someone you trust to act as you would expect.
Your attorney is under a duty to act in your best interests, but there are some other measures you can take to reduce the risks of problems arising. These include appointing attorneys to act jointly or restricting your attorneys’ powers. However, these can have unintended issues, and your solicitor will discuss these with you as part of advising you on the EPA. You can revoke the EPA at any time while you still have mental capacity.
What Will it Cost?
The cost of an EPA depends on what clauses or conditions you want to put in your EPA. You should talk to your solicitor about the cost at your first meeting. Generally speaking you should budget for approximately $300 to 350 plus GST per EPA.
Who Can I Speak to in Order to Establish One?
Anyone setting up an EPA must get legal advice. If you wish to make an EPA, you should contact your solicitor.