August 2015
Temporary or permanent incapacity can strike at any time – think Michael Schumacher’s skiing accident. Historically, people requesting Enduring Powers of Attorney (EPA) have been stereotyped as being pensioners entering rest home care. In many circumstances, that is still the case as the majority of rest homes require EPAs as an entry requirement. However, these days more and more people are taking advantage of the protection and security that these powers offer to both them and their family.
With an increased incidence of cancer affecting mental and physical capacity, accidents and dementia striking people at an ever younger age, it is prudent to provide security and certainty for both you and your family. An EPA will ensure that your affairs will be looked after, by your appointed person, if you ever become incapable of making decisions for yourself.
What are Enduring Powers of Attorney?
EPAs are documents which appoint a person of your choice to act on your behalf if you become incapable of managing your affairs. The key point is that the EPA needs to be set up while you are still mentally capable – if you are already incapacitated then it is too late to set up the powers – if that happens your family will be forced to spend considerable time and money applying to the Family Court for authority to act on your behalf and if successful will need to repeat the whole process again in three years time. The EPAs only operate while you are alive and continue to operate if you become mentally incapacitated.
The EPAs offer options, set conditions and restrictions about how your property should be dealt with or what you would like to happen to you.
It is the Attorney’s duty to always act in the donor’s best interest and this should be their paramount consideration at all times. Attorneys have a legal duty to consult with you as far as practicable and anyone else specified in the EPA.
There are two types of EPA – one for your personal care and welfare and one for your property (including your house, bank accounts, investments, possessions and debts etc.)
Personal Care and Welfare
This covers your health or personal decisions and only takes effect if you become mentally incapable and until that happens, you would continue to make your own decisions. Only one personal care and welfare Attorney can act at any time, however, you can appoint a substitute Attorney as a “back-up” in case the first Attorney becomes unable to act on your behalf. A personal care and welfare Attorney would make decisions in relation to your medical treatment, if you needed to be placed in care and, if so, the facility where you would reside.
Property
The Attorney appointed can manage all things to do with your assets and possessions – i.e. they can decide whether to sell your home, invest your money or mange your business. This particular power can take effect immediately or alternatively only if you become mentally incapable. More than one person can act in this role at any time and you are also able to appoint a substitute Attorney.
As you can only set up an EPA while you are mentally capable, the best time to implement the documentation is now. While you’re at it, make sure your Will is up to date as well!
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