Enduring Power of Attorney – becoming an attorney
An Enduring Power of Attorney (EPA) is a legal document giving a person (known as an ‘attorney’) the power to make decisions for someone who can no longer decide for themselves.
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What does it mean if someone gives me Enduring Power of Attorney?
Being an attorney is an important and valued role. It means you are trusted to protect someone’s wishes about their future life and/or their treasured possessions, such as their house, money and belongings.
An EPA must be set up before the person – known as the ‘donor’ – needs one, and while they still have the mental capacity to make their own decisions. Acting in the donor’s best interests is the most important part of being an attorney.
There are two types of EPAs and a donor may have the same attorney for both:
- Property – a donor can have one or several attorneys for this, including a trustee corporation (such as Public Trust), and it can be activated before the donor loses mental capacity. If there is more than one attorney, they may be responsible for specific tasks, or have to consult with each other on decisions.
- Personal care and welfare – only one attorney is allowed for this EPA, and it can’t be a trustee corporation. This is only activated when the donor is considered ‘mentally incapable’.
What will I have to do?
After an EPA is activated, an attorney has the power to make decisions for the donor. What you need to do depends on the type of EPA and how much the donor wants you to do.
For a property EPA you may need to:
- pay bills and take care of bank accounts, maintain or sell property and shares, and carry out whatever responsibilities are stated in the EPA.
For a personal care and welfare EPA you may need to:
- decide on issues such as medical care, accommodation, and general wellbeing. You cannot decide on marriage, divorce, or adoption, or refuse life-saving medical treatment.
You must consult the donor and anyone else named in the EPA, and if you are a property attorney, keep good financial records. It’s also important to help the donor to participate in decisions if that’s possible.
If there are other attorneys, you need to work with them and consult each other regularly to ensure that the interests of the donor are not affected by any breakdown in communications.
When does the EPA come into effect?
An EPA will only come into effect if a medical professional or the Family Court determines that the donor is mentally incapable. However, for property, the EPA can come into effect while the donor is mentally capable and continues if the donor loses mental capacity.
Will someone be checking I’m doing the right thing?
You have a legal duty to consult with the donor as much as possible, and anyone else named in the EPA. You also have a duty to keep records. In addition, you may need to provide information about your actions to people named by the donor so they can monitor your decisions.
The Family Court can also monitor your performance and may change the EPA terms if an application is made to the court.
When does the EPA end?
The donor can change, end or make a new EPA if they are still mentally capable. Also, you will lose your role as an attorney if you are declared bankrupt, become subject to a personal or property court order, the Family Court revokes your appointment, you otherwise become incapable of acting, or you die. You also stop being an attorney if your donor dies.
If you don’t want to be an attorney anymore, you can give notice to the donor in writing while the donor is still mentally capable, or go to the Family Court if the donor has lost capacity.
Where can I get help?
You can also ask the Family Court for directions if you have having difficulties carrying out your EPA instructions.
Do I need an EPA as well?
Yes. It’s about protecting your future, and unfortunately you never know when you’ll need to use one.
If you don’t already have one, now’s the time to choose who you want to make decisions for you when you can’t decide for yourself.
Do you have any questions? Read the answers to frequently asked questions about EPAs here: