December 2024

Life is unpredictable, and while we hope for the best, it is wise to be prepared for the unexpected. One crucial aspect of this preparation is understanding and establishing an Enduring Power of Attorney (EPOA). This legal document can provide peace of mind and ensure your affairs are managed according to your wishes, even if you become unable to make decisions yourself.

What is an Enduring Power of Attorney?

An EPOA is a legal document that grants another person, known as the attorney, the authority to make decisions on your behalf. This means that if you lose mental capacity to make your own decisions, your chosen attorney or attorneys can manage your affairs without interruption, ensuring continuity and stability.

Types of Enduring Power of Attorney

There are two types of EPOAs:

1. Property EPOA: This allows your appointed attorney(s) to manage your financial affairs, such as paying your bills, managing your investments, and handling property transactions. A Property EPOA can grant authority to your attorney(s) while you have mental capacity with the authority to continue even if you have lost mental capacity, OR it can specify that authority is only granted if you have lost mental capacity.
2. Personal Care and Welfare EPOA: This grants your appointed attorney authority, only if you have lost capacity, to make health care decisions on your behalf, including consent to medical treatments and decisions about long-term care.
   
   A medical certificate by a suitably qualified medical practitioner confirming your incapacity is always required before this enduring power of attorney commences.

Why do you need an Enduring Power of Attorney?

1. Peace of mind: Knowing that someone you have chosen and trust will manage your affairs if you become unable to do so yourself can provide significant peace of mind. It ensures that your financial and medical decisions are handled according to your wishes.
2. Avoiding legal complications: Without an EPOA, your loved ones might need to go through a lengthy and costly court process to gain the authority to manage your affairs. Having an EPOA in place avoids this otherwise unnecessary legal application, and saves you and your family stress, cost, and time when it matters most.
3. Protecting your interests: An EPOA ensures that your interests are protected by someone you have chosen who understands your values and preferences. This is particularly important for medical decisions, where your attorney can advocate for your preferred treatments and care options.
4. Continuity in financial management: If you become mentally incapacitated, your financial affairs can quickly become complicated. An EPOA allows your attorney to seamlessly manage your finances, ensuring bills are paid, investments are managed, and your financial security is maintained.
5. Personalised decision-making: By appointing an attorney, you can choose someone who knows you well and understands your personal preferences and financial goals.

How to establish an Enduring Power of Attorney

Creating an EPOA involves several steps:

1. Choose your attorney or attorneys: Select someone you trust implicitly, as they will have significant authority over your affairs. It is often a close family member or a trusted friend who is appointed.
2. Consult a legal professional: There are many rules and legal requirements that need to be considered when drafting EPOAs such as how many attorneys you can appoint to act at one time, the appointment of successor attorneys, the ability for attorneys to benefit themselves or others, the intended scope of the specific EPOA, how EPOAs can be activated and revoked, and if and when doctors’ certificates of incapacity are required. It is therefore advisable to consult with a lawyer to ensure the EPOA is correctly drafted and signed by you and by your attorney(s).
3. Consider the extent of the powers granted: Clearly outline the powers you are granting to your attorney. You can include specific instructions for financial management and health care decisions, or you can simply have the Property EPOA cover all your property and the Personal Care and Welfare EPOA cover all personal care and welfare matters.
4. Communicate your wishes: Discuss your wishes and expectations with your chosen attorney to ensure they understand your preferences and are prepared to act on your behalf.
5. Executing the document: The EPOA must be disclosed to you and signed and witnessed with a practising lawyer or registered legal executive.

An Enduring Power of Attorney is a vital tool in planning for the future. It ensures that your affairs are managed according to your wishes, even if you become unable to make decisions yourself. By establishing an EPOA, you can protect your interests, provide peace of mind for your loved ones, and avoid unnecessary legal complications. It is a proactive step that can make a significant difference in times of uncertainty.