Be prepared - you never know what's around the corner

Written by: Genevieve Kaye
Feb 08 2024

Enduring Powers of Attorney (EPA) are not just for old people and those with kids

There may come a time when you need someone else to make decisions on your behalf about your property, financial affairs, and personal care and welfare. 

Because, to put it bluntly, you never know what is round the corner and you never know if, or when, you may lose capacity (either temporarily or permanently).

An EPA is a legal document which sets out who can take care of your personal care and welfare or financial matters if you can't. Any attorney should be a person you trust.

EPAs are not just for older people, and those with children and contrary to popular belief a husband and wife do not automatically have the power to take care their better halves personal or financial matters. They are an important consideration for all people over the age of 18 because it is better to be prepared by having EPAs in place, and not require family and friends to struggle with the emotional and financial burden of organising your care and finances through the court process. This is a time when they are worried about you and will want to be focussed solely on looking after you.    

If a person loses capacity and does not have an EPA, their family and friends need to apply to the Family Court to appoint a Property Manager and/or Welfare Guardian. This can be a time consuming, stressful, and costly process. 

If the EPAs state that they are only in effect while the person is deemed mentally incapable, then when the person regains capacity, the attorney no longer continues to act. For example, if a person sustains a brain injury deeming them mentally incapable and then their brain heals, and they are deemed mentally capable again, their attorney can step in to look after their financial affairs and personal care during the period of incapacity only and once they are deemed mentally capable they can look after their own affairs. The hope is always for the individual to regain the ability to make their own decisions about their personal care and financial affairs. 

Setting up an EPA should not be difficult and need not be confusing if you have the right advice and guidance from experts like our trusts and estates team

There are two EPAs: 

  • One for property which deals with your financial affairs 

  • Another for personal care and welfare which gives someone the authority to make decisions on your behalf in relation to your care and welfare

In relation to an EPA for Property, more than one attorney can be appointed at a time and the EPA can come into effect immediately or only when a medical practitioner deems the person mentally incapable.

When it comes to an EPA for Personal Care & Welfare, only one person can be appointed at a time to act as an attorney, and it comes into effect only if and when a medical practitioner deems the person mentally incapable.

Both EPAs for Property and an EPA for Personal Care & Welfare enable a person to future proof the document by appointing a successor attorney, or a person you trust to be your attorney if the first attorney can no longer act (eg: if they disclaim their power, die, or are deemed mentally incapable). 

An attorney’s power, or the entire document, can be revoked at any time while an individual is still mentally capable to do so.

There are checks and balances in place including an attorney for property being required to keep a record of everything they do in relation to a person’s financial affairs. 

Additionally, the documents give a person the ability to specifically name a person (or people) who the attorney must either consult with, or provide information to, if they request it before any decisions are made. 

A good time to organise EPAs is while making a will. And, similar to wills, everyone over the age of 18 should consider putting an EPA arrangement in place.

For assistance setting up Enduring Powers of Attorney or to discuss EPAs please contact Anthony Kuran on 09 306 0611 or @email.