Completing an Enduring Power of Attorney
Completing an Enduring Power of Attorney
An Enduring Power of Attorney (EPA) is a formal document that gives another person the legal power to make certain decisions on your behalf.
Specifically, an EPA gives someone the power to make personal and/or financial decisions for you when you have lost the capacity to make those decisions yourself. For example, you may be too ill to make decisions, or you may be overseas.
Personal matters include those that relate to health care, and can involve such things as your day-to-day living arrangements, diet, or whether you should have an operation.
Financial matters can relate to such things as how your income should be invested, or managing your investment portfolio.
The attorney you appoint should be a person over the age of eighteen who you trust. They should not be a current paid carer, and if looking after your financial matters they should not be bankrupt or insolvent.
You can revoke or change your EPA as long as you have the capacity to understand what you are doing. If your attorney does not adequately protect your interests, it is possible to have them removed or changed by the Court or the Adult Guardian.
Certain events can automatically revoke your EPA, these include:
- marriage (unless your spouse was named as an attorney);
- an inconsistent document; and
- if your attorney becomes incapable of understanding the document.
There are two EPA forms that may be completed:
- Short form. This is used when you appoint the same attorney(s) to make decisions for both personal and financial matters.
- Long form. This is used when you appoint one attorney to make decisions for personal matters, and another for financial matters.
This article will step through and explain each part of the EPA short form.
The first section of the EPA short form requires you to provide your name and address, as well as the names and addresses of each of your attorneys.
You must then select whether you want your attorneys to make personal and/or financial decisions for you. You have the option of providing more information about your specific wishes on how they conduct these matters. For example, you may have a specific nursing home in which you would like to live.
If you have given your attorneys the power to make financial decisions, you are asked to specify when you would like those powers to begin. It can be immediately or on a particular date or occasion. If you give your attorneys immediate power, you can still make decisions while you have the capacity to do so.
If you are appointing more than one attorney, you must specify how they make their decisions. For example, any one of them may decide, or you may request that it be a unanimous or majority decision. Alternatively, you may wish to provide more specific instruction such as allowing one attorney to make the decisions only if the other attorney is out of the country.
You then must sign the statement of understanding which sets out how the EPA comes into effect. Your signature must be dated and witnessed.
The witness for your EPA must be either a Justice of the Peace, a Commissioner for Declarations, a Notary Public, or a lawyer. They cannot be related to you, or be acting as your paid carer or be one of your attorneys.
The witness must certify that you understand the nature and effect of the EPA. They must sign and date the EPA.
Part 3: The Attorney
In this section, the EPA form sets out the principles and responsibilities that come with being an attorney.
The attorneys must exercise their power with responsibility and reasonable care, and must abide by the general and healthcare principles listed in the form. Namely, the attorneys must always act your best interests and ensure their decisions are appropriate to your characteristics and needs.
The attorneys have a duty to keep records of all financial transactions they make on your behalf, and make sure that they receive approval for unauthorised transactions. They should avoid transactions that involve a conflict of interest, and should only give away your property where it is likely that you would have done so.
The attorneys must complete the acceptance section of the form. This states that they must be eighteen or over, are not your paid carer, and understand the nature and effect of their powers. They must sign and date this section.
Once the EPA form is completed by yourself, your witness and your attorneys, it should be kept in a safe place and copies should be given to relevant people such as your doctor, lawyer, and accountant.
Completing an EPA requires careful thought and consideration. If you would like to speak to one of our expert estate planning lawyers or if you have any questions arising from this post, please contact us on 07 3106 3016 or by using the form on this page.
This article does not give legal advice and should not be relied upon as such. It is intended to provide general and summary information on legal topics, current at the time of first publication. You should seek professional legal advice before acting or relying on any of the content contained herein.
The images of the EPA Short Form (Form 2) are the copyright of the Department of Justice and Attorney-General.