What is an EPA?

An Enduring Power of Attorney (EPA) is an important legal document. It allows you to choose who will make decisions for you in the future if injury or illness means you can’t make decisions or manage your own affairs.

If something happens to you and you do not have an EPA, your family – including your spouse or partner – would have to apply to the Family Court to be able to act on your behalf. This process can be stressful and expensive.

Having an EPA can protect you from abuse and means your wishes are more likely to be respected because you have chosen people you trust in advance who will make decisions in your best interests.

A good time to organise your EPA is when you’re making your will, but everyone – whatever their age – should think about getting an EPA.

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Key terms

The “donor” is the person who is making the EPA.

An "attorney" is the person appointed by the EPA to make decisions for the donor if they are not in a position to do so (due to physical or mental incapacity). This person does not have to be a lawyer.

“Capacity to make decisions” means you are mentally competent to make decisions.

A "health practitioner" means someone qualified to assess mental capacity (your capacity to make decisions), for example, a GP, a doctor specialising in the care of older people, or a mental health nurse.

If you have more than one attorney (for your property EPA), you can choose whether they act “jointly” or “severally”.

"Jointly appointed" attorneys make decisions together. If one attorney cannot act for any reason, the other attorney cannot make decisions alone.

“Severally appointed” attorneys can make decisions separately.

“Property” relates to your property including but not limited to your home, rental properties, bank accounts, investments and shares.

“Personal Care and Welfare" relates not only to medical decisions but also to your day-to-day personal needs including but not limited to food supply, cleanliness, nursing needs, hairdresser, podiatrist and physiotherapist.

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What an EPA covers

There are two types of EPAs – property EPAs and personal care and welfare EPAs.

Property EPA

Your property attorney must use your property to promote and protect your best interests.

A property attorney can make decisions relating to financial assets, for example:

• Communications with respect to benefits (applying for a residential care subsidy for example).

• Paying bills (including but not limited to power, telephone, rates, insurance and hospital or rest home levies).

• Buying and selling property and other assets.

• Managing bank accounts and other investments.

A property EPA can come into effect before you lose the ability to make decisions for yourself, for example, if you are moving into assisted living and want your attorney to manage the sale of your house on your behalf, or you cannot physically attend a bank.  An EPA for property can be invoked (whereby the attorney can act without referring to you), if a doctor certifies that you have lost the ability to make decisions for yourself.

You can choose more than one attorney for this EPA, and you can have alternative attorneys.

Your attorney must not make decisions for the benefit of themselves or anyone other than you, except in some limited circumstances.

Personal care and welfare EPA

A personal care and welfare attorney's most important concern is to promote and protect your welfare and best interests. They can make decisions relating to health and wellbeing, for example, your:

• Medical treatment (this does not relate to euthanasia or refusal of life-saving treatments).

• Health and welfare.

• Living situation (food source and if you are able to continue to live without support).

You can have only one attorney for this EPA however you can have alternative attorneys.  This EPA only becomes effective when you lose the ability to decide things for yourself.  A doctor must provide a medical certificate confirming this.

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Choosing your attorneys

People often choose a family member or close friend as an attorney, but ideally, it should be someone who:

• Knows you well.

• You trust to make decisions for you.  Attorneys have wide powers so if you don’t trust them ultimately to make decisions for your benefit then don’t appoint them.

• Is willing and able to take on the responsibility of being an attorney.

An attorney's job can be time-consuming and physically exhausting. Their role (if not a professional attorney) is not paid.  A property attorney must also keep records of any financial transactions.

You can also choose a trustee corporation (such as a Public Trust) to be an attorney for your property EPA (but not as your personal care and welfare EPA).

For both property and personal care EPAs, you can:

• Choose special terms and conditions for your attorneys, for example - they cannot sell your home for less than a certain amount.

• Select another person for the attorney to consult with or report to (such as other family members, your lawyer or accountant).

• Name people to whom the attorney must supply relevant information if they ask for it. (this could be a lawyer, accountant or other family members).

It's a good idea to talk to your attorneys about what you might want in various situations, so they know your wishes.

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Next steps

Once you have decided that you will complete powers of attorney documents, you will need to arrange a lawyer, a qualified legal executive, or a representative of a trustee corporation, to prepare the documents, be your witness and certify the documents.

In certifying the documents, the legal representative will make sure:

• you understand all your options

• you comprehend what the EPA document means, and

• your documents meet all the legal requirements.

If you don’t already have an EPA in place or you wish to update yours, our Estates, Wills and Trusts team can help. Contact us today to choose who you would like to make decisions in your best interest if you are not able to decide for yourself.

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By Nola McGowan and Natasha Allen

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