Changes to Enduring Powers of Attorney
Recently the legislation regarding Enduring Powers of Attorney (“EPA”) had a significant makeover. The forms for EPAs have now changed and it is important to understand how these changes may affect you. We aim to answer some questions you may have about what these changes will mean for you:
Q: What is an EPA?
A: The short answer is that an EPA authorises people (known as attorney(s)) to act on your behalf in relation to your property or personal care and welfare matters.
Q: How have the forms changed?
A: There are now standard EPA forms for property and for personal care and welfare. Previously each law firm used their own precedent forms based on the legislation. The forms are now in plain English and have standard form notes and explanations that accompany them.
Q: I already have EPAs in place, do I need to make any changes if the forms have changed?
A: EPAs executed before 16 March 2017 remain valid. If your circumstances have changed, it may be a good time to review your existing EPA arrangements.
Q: I need to urgently sell my listed property as my agent has presented an amazing offer. However, I am overseas with my son and we don’t have access to a printer/scanner. Luckily, I recall my solicitor advising me that my property attorneys can sign sale and purchase agreements on my behalf. My daughter and son are joint attorneys for my property, can she sign on my behalf while I am away?
A: It depends.
Firstly, your property EPA will need to specify that it takes effect while you still have the mental capacity to make decisions. If not, then your daughter will not be able to sign on your behalf.
Secondly, if your EPA was executed before 16 March 2017 it is unlikely. Prior to the 2017 law change where two attorneys were appointed this was either “jointly” or “severally”. That means if the attorneys had joint authority then both attorneys would need to sign the document. If this is the case then the agreement to sell your property would need to be signed by both your daughter and your son. The 2017 law change allows attorneys to be appointed “jointly and severally”. This means that one attorney out of the two can sign on your behalf.
Q: Do I need to see my lawyer to put EPAs in place?
A: Yes, the new forms still require witnessing by a lawyer (or other qualified person), and additional requirements have been placed on the witnessing lawyers.
Q: Why is it important to have EPAs?
A: If you lose capacity without EPAs in place, then your family or friends will need to apply to the Family Court to manage your affairs and make decisions in regard to your welfare and property. This is a costly exercise and can take some time to process through the Family Court. A lawyer will need to be appointed for the person who has lost capacity and it is not guaranteed that the Family Court will make the orders that are sought after or appoint a person that has been requested.
Another reason for putting EPAs in place is the flexibility that the property EPA allows. If you choose the document to come into effect immediately (i.e. while you have capacity), your attorney(s) may sign documents on your behalf, for instance if you are out of the country or have broken both arms etc.
For these reasons we always recommend that clients have EPAs in place regardless of their age. If you have any questions about EPAs or the new forms please feel free to contact us.