Enduring Powers of Attorney (known as an EPA or EPOA) are legal documents that allow you to appoint someone you trust to make decisions for you if you are no longer able to do so yourself. Some people set an EPA up when they buy their first home or start a family for example, but there is no time like the present.
There are two different kinds of EPA/EPOA: one for personal care and welfare matters; and one for financial and property matters. You can appoint a family member, trusted friend or an independent person (such as a specialist lawyer, accountant or trustee) but they do not need to be the same person.
For your personal care and welfare, you can appoint only one person/ attorney at any time. You cannot appoint an organisation to act in this role. An EPA/EPOA in relation to your personal care and welfare can be activated only if you lose the mental capacity to make your own decisions. The law says you are presumed to be competent, or mentally capable to make your own decisions, unless an assessment by your GP or another qualified health practitioner shows otherwise.
For financial and property matters, you can appoint one or more attorneys and you can specify how and when they will act. If you want someone independent, you can engage the services of a specialist such as a lawyer, accountant or trustee company. A finance and property EPA/EPOA can be set up to be used by your attorneys while you still have mental capacity or to come into effect only if you lose that.
The legislation includes many safeguards, and the rules about how your attorneys can operate are well defined:
- Attorneys can be restricted as to what property and personal matters they can and cannot act on.
- Your attorneys can materially benefit from their role only if you have made provision for that.
- Your attorney must consult with any other attorneys you have appointed. This gives more oversight and is a good reason to appoint more than one.
- You can revoke your attorney, unless you have lost mental capacity.
- The attorneys must provide information to others if they request it, if they have a right to see it (your accountant or doctor, for example) and if you have made provision for that.
You should also appoint successor attorneys. These can step in if the original attorneys are unable or unwilling to act for you.
Once the EPA/EPOA is in place, give your attorneys, successor attorneys, doctor, accountant, bank and family copies of the relevant documents. If you move into residential care or a retirement village you will be asked for these documents. The EPA/EPOA needs to be activated for those going into dementia or psychogeriatric care.
You will need a special EPA/EPOA form. Those who are advising you can supply the form, or it is available online from the Office for Senior's website . Read through the forms before you have any meetings, to ensure you’re well prepared (and to save time and money). Your signature on the form must be witnessed by an authorised witness; they need to certify that you understand what you are signing and what the risks are, and that you are not being pressured.
This information is of a general nature. It is not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose. It is not an alternative to legal advice and does not replace any requirements under any relevant Act, Regulations, Code of Practice, Rule, Standards or Orders. While we have endeavoured to ensure this information is accurate and as useful as possible, we accept no responsibility, loss or liability resulting from the use of this information. We urge you to seek appropriate or professional advice on all issues such as this.
Updated: 16 Jun 2022