It is important to consider making an EPA in case you lose capacityto make independent and informed financial decisions in the future.
An EPA can be made by anyone over the age of 18, who has full legal capacity.
There are different views on what 'full legal capacity' means. It may mean that you can understand:
- the nature and extent of what you own
- that yourattorney will, in general, be able to do anything with your property which you yourself could do
- that while you are mentally capable, you may direct your attorney to act in a particular way and may revoke (cancel) the EPA
- that if you become mentally incapable, the EPA will continue and can only be revoked in limited circ*mstances
- that your attorney won’t be monitored or audited, so you are placing a very high level of trust in that person or organisation.
An EPA cannot be made by another person on behalf of someone whose capacity might be in doubt due to mental illness, acquired brain injury, cognitive impairment or dementia. The benefit of an EPA is that, unlike an ordinary power of attorney, it will continue to operate even if the person who made the document (the donor) loses full legal capacity.
When a person makes an Enduring Power of Attorney, they can choose for their attorney’s authority to start immediatelyor only if they lose capacity.
If you make an EPA and choose for it to start immediately, this doesn’t mean you can no longer make decisions about your property and finances. But it means if you want your attorney to be able to start doing certain financial tasks for you, they will have the legal authority to do so, under your guidance. Then if you lose capacity in the future, your attorney will be able to step in and start making these decisions for you.
If you choose for your EPA to only come into effect if you lose capacity, this means your attorney will only ever have authority to make your property and financial decisions if the State Administrative Tribunal determines you have lost capacity. If in the future, your attorney believes you are no longer able to make decisions about your property and finances, they will need to apply to theTribunal to have them make that decision.
An EPAdoes not give an attorney the authority to make personal and lifestyle decisions, including decisions about treatment and medical research. The authority of the attorney is limited to decisions about property and financial affairs. If you want to give authority to a person/s to make personal, lifestyle, treatment and medical research decisions on your behalf, you should consider making an Enduring Power of Guardianship.
To cancel (revoke) an Enduring Power of Attorney, the person who made it must have full legal capacity. The cancellation (revocation) should be made in writing. If the person has lost capacity, an application can be made to the Tribunal to decide if the EPA should be cancelled.
For information about Enduring Powers of Guardianship and Advance Health Directives, refer to the Office of the Public Advocate website.
