What is an Enduring Power of Attorney (EPA)?
An EPA is a legal document which allows you to appoint a person (your attorney) to make decisions on your behalf if you are unable to make those decisions. The person you choose is usually a family member or close friend who understands and respects your wishes, and who you trust to act in your best interests at all times.
There are two types of EPA: an EPA in relation to property and an EPA in relation to personal care and welfare.
An EPA in relation to property authorises the person (or people) you have appointed to make decisions on your behalf about your property affairs, such as what happens to your assets and bank accounts. You can authorise them to act for you act for you while you have mental capacity, as well as once you have lost mental capacity.
An EPA in relation to personal care and welfare gives the person you have appointed the ability to make decisions about your health and welfare. This EPA only comes into effect once you have lost mental capacity. For example, if you are diagnosed with dementia and it compromises your intellectual capacity, the person you have appointed in your EPA can make decisions on your behalf if a doctor has certified that you are no longer able to make those decisions yourself.
Who can have an EPA?
Anyone deemed to be of sound mind can have an EPA. Drawing up an EPA while you are well gives you more control and input into your plans for the future, especially if you are concerned there may be a time that you are not able to make your future decisions yourself.
Who cannot have an EPA?
A person who is deemed incapacitated or of unsound mind cannot draw up an EPA. But what does this mean?
Capacity is assessed by examining a person’s ability to comprehend information given to them, retain information, consider the information to make a choice and communicate their choice. For example, dementia can affect a person’s ability to retain information, and this will likely affect that person’s capacity to make important decisions.
Unfortunately, it is all too common that by the time the conversation about capacity and EPAs comes up, it can be too late to put them in place.
What happens if you do not have an EPA?
If you do not have an EPA, and have lost your capacity to make your own decisions, someone will have to apply on your behalf to the Family Court to appoint a Property Manager or Welfare Guardian. The Court will need to be sure that the person they appoint will act in your best interests, which is difficult for them to do when you cannot communicate yourself. Applying for these orders is expensive and takes time and the person the Court appoints may not be who you would have chosen.
Being prepared and setting up an EPA early is simpler, cheaper, and may prevent your loved ones from further worry at what may already be a stressful time.
The Life Law team at Godfreys Law can guide you through the process of creating your EPA and make sure that your rights and wishes will be respected and upheld.
If you would like to get your EPA sorted, contact Godfreys Law on 03 366 7469.
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