Are you thinking about setting up Enduring Powers of Attorney for yourself? Do you understand why these are even necessary? Maybe you are waiting for the “right time” to put them in place. Whatever the case, forward planning when it comes to EPAs means that you have them in place well before they need to be used.
What are EPAs?
An EPA is a document under which you give legal authority to a person or people to manage your affairs if you are unable to. An EPA operates while you are alive, which makes it different from a will, which comes into effect after your death. There are two types of EPA which are separate documents that each serve a different purpose:
Why do I need EPAs?
Having your EPAs in place before you need to use them is essential; without them it becomes difficult for your family and loved ones to make sure you receive the care and support you need.
If you are involved in an accident, develop a serious illness or become mentally incapable for any reason you may be unable to make or communicate decisions yourself. It is a common misconception that your partner or family can automatically make decisions for you if you are unable to. Without EPAs in place, an application to the Family Court for ‘Orders to have a Welfare Guardian and/or Property Manager Appointed’ on your behalf must be completed. This process is costly and takes time, leaving you without someone who can legally look after your welfare and property when you need it most.
Enduring Power of Attorney for Personal Care and Welfare
An EPA for your personal care and welfare covers decisions that need to be made for your care and wellbeing. Your personal care and welfare Attorney can make decisions about your care, the medical treatment you receive, and where you live, including rest home care if you require it.
Your Attorney cannot refuse lifesaving medical treatment on your behalf, cannot consent to medical experimentation being carried out on you, and cannot make any decision relating to marriage, divorce or adoption on your behalf.
An EPA in relation to your personal care and welfare can only be invoked (relied on by your Attorney) if you become mentally incapable. The decision that you have lost capacity cannot be made by your Attorney, it must be made by a relevant heath practitioner.
Enduring Power of Attorney for Property
An EPA for property relates to the assets and property that you own, including any financial assets such as your bank accounts or investments, or to specific property that you itemise in your EPA. When you appoint an attorney or attorneys to take care of your property this person or people can manage your property for you if you are unable to. Your property Attorney can help by paying your bills, manage your banking, sign documents on your behalf and make decisions about your property as required. Unlike the EPA for your personal care and welfare, your EPA for property can take effect at any time chosen by you, either:
If you elect option two, your Attorney will take over decision making only once a doctor has certified that you have lost mental capacity.
Can I change them or cancel them?
You can change or cancel (revoke) your EPAs at any time while you have mental capacity. If you decide to revoke them, or to change them, you should advise your Attorney(s) of this decision in writing.
What do I need to know before I start the process?
When setting up EPAs, you need to appoint a person or people you trust to act as your Attorney. This may be the same person for both property and personal care and welfare or you may choose for separate people to assume the responsibility for each. It is your decision who you appoint – this person does not need to be a family member – it is up to you who you appoint. However, your Attorney(s) must be at least 20 years of age, must not be bankrupt, and must not be suffering from any form of incapacity.
While your Attorney has the power to make decisions for you, there are protections under the Protection of Personal and Property Rights Act 1988 which require them to act in your best interests. Your Attorney must always consult with you as far as possible before making a decision on your behalf and should encourage you to act on your own behalf as much as you can. If you or any interested person is concerned that your Attorney is not acting appropriately then the Family Court is able to intervene.
Before you meet with us about Enduring Powers of Attorney
You should think about who you would like to appoint as your Attorney(s), and whether you want to appoint a backup person if your chosen Attorney(s) are unable to act for you. Speak to the person or people you want to appoint and make sure they are willing to carry out this role for you. You should also consider whether you want your Attorney(s) to consult with, or provide information to, anyone else about decisions the Attorney(s) are making or decisions you have made. You may include any restrictions or special directions within your EPAs for your Attorney(s) to follow.
Once you have made these initial decisions, contact us for an appointment where we will go over your options, answer your questions and have your EPAs prepared.
Enduring Powers of Attorney and Wills
While setting up EPAs, you might also consider creating a will or updating your existing will remembering that EPAs only apply when you are living. For further information on why you need a will and how we can help you create one see our article on wills here
We look forward to assisting you with your Enduring Powers of Attorney and other estate planning matters. Please contact Sarah Wilson or Jude Wilson (not related) should you want to commence your EPA today.
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