When do I need Enduring Powers of Attorney?

When a person loses the capacity to make decisions for themselves in respect of their property and their own care, there can be serious complications if they have not already set a plan in place to allow a family member or trusted friend to step in and make those decision on their behalf.

Once a person has already lost mental capacity to make such decisions, and there is no Enduring Power of Attorney in place, family members must go to the considerable time and expense of applying to the Family Court for orders to act on that person’s behalf.

There are two kinds of EPOAs, and it is advised everyone take the time to enter into both while they are fully capable of managing their own affairs, particularly as they get older. There is an EPOA for property, and one for personal care.

Enduring Power of Attorney for Property

The donor (person appointing an attorney) can choose whether the EPOA for property comes into effect immediately upon signing as a convenience, or it may come into effect upon a doctor declaring them mentally incapable of managing their own property. A donor may appoint one or more people to act jointly as their property attorney.

When a family member loses mental capacity, even the simple matters which arise in managing their property can turn into insurmountable obstacles. From basic matters such as signing bank documents and authorising payments for their rest home fees, to more significant matters such as signing a sale and purchase agreement to sell a property become very difficult when no one has the authority to act on the person’s behalf.

Enduring Power of Attorney for Personal Care

Making personal decisions for a person who has lost the capacity to decide for themselves can become very important when a loved one enters a care facility or begins to spend significant amount of time in a hospital or under home care. If an EPOA is in place, a family member can make decisions as to which medical treatment the donor will receive, what care facility they will reside at, whether they require home help, and countless other decisions which a crucial to a vulnerable person’s wellbeing.

Only one person may be appointed to act as an attorney for personal care and welfare, and the power will only take effect once the donor has been declared mentally incapable by a medical practitioner.

What happens if I lose capacity and I don’t have Enduring Powers of Attorney in place?

Once a person has already lost the ability to make decisions relating to their own property and/or personal care, it is too late to sign an EPOA. In this scenario it becomes necessary for someone else to apply to the Family Court to become a welfare guardian or property manager to be able make decisions on their behalf.

 

One or more property managers can be appointed by the court to make decisions for an incapacitated person as to how to manage their property. Decisions include matters involved in running a business, bringing and defending court proceedings and buying and selling property, among others. The court has discretion to increase or decrease the standard powers given to property managers depending on the incapacitated person’s circumstances.

The Family Court may also appoint a welfare guardian to make decisions about the personal care and welfare of the subject person. A welfare guardian has similar obligations to an EPOA for personal care and welfare and must consult with the incapacitated person as much as possible to involve them in decision making. A welfare guardian is also bound by certain restrictions, such as not being able to enter into a marriage or divorce on the incapacitated person’s behalf, and not being able to refuse standard medical treatment intended to save their life or prevent serious damage to their health.

The process for being appointed as a welfare guardian or property manager can be time consuming and expensive, and can cause unnecessary distress to the incapacitated person. To avoid reaching a point where this is necessary, it is prudent for everyone to ensure they have EPOAs securely in place while they are still capable of managing their own affairs.