Enduring Power of Attorney
What is Enduring Power of Attorney?
An enduring power of attorney is a legal document that allows an individual, known as the ‘principal’, to nominate one or more persons, referred to as ‘attorneys’, to make decisions on their behalf.
Creating an enduring power of attorney involves a careful selection process where the principal must decide who will manage their affairs if they are unable to do so themselves. This process is crucial for planning for the future, covering scenarios where the principal might become incapacitated due to illness, accident, or age-related conditions.
Difference Between EPOA and POA
The key distinction between an enduring power of attorney (EPOA) and a general power of attorney (POA) lies in their scope and duration, particularly regarding the principal’s mental capacity.
While a POA is primarily designated for financial decisions and becomes invalid if the principal loses mental capacity, an EPOA extends its effectiveness to include personal and health care decisions and remains valid even if the principal becomes mentally incapacitated.
This enduring feature of the EPOA ensures that the appointed attorney can continue to make decisions on behalf of the principal, aligning with their wishes and best interests, under circumstances where the principal cannot.
The Role of the Attorney
Attorneys appointed under an enduring power of attorney have significant responsibilities. They must act in the best interests of the principal, making decisions as the principal would have made if capable. This includes managing finances, making investment decisions, and potentially making or managing personal decisions, depending on the powers granted.
An enduring power of attorney is a critical element in both legal and personal planning, offering assurance and security for individuals and their families. It’s essential to select trusted attorneys and precisely define the powers conferred to ensure that your affairs are handled in accordance with your wishes, even if you become incapable of making decisions.
A legal professional can provide invaluable guidance, ensuring that the enduring power of attorney document accurately reflects your intentions and complies with the relevant laws and regulations.
How to Get Enduring Power of Attorney
To set up a Power of Attorney (POA), follow these essential steps:
- Research: Start by understanding what a POA encompasses, focusing on its purpose and the scope of authority it grants to the attorney.
- Select an Attorney: Carefully choose someone you trust implicitly to manage your financial affairs. This person should be reliable, financially savvy, and ideally, share your approach to money management.
- Consult a Legal Professional: It’s advisable to seek legal advice to understand the nuances of a POA in your jurisdiction and to ensure that it accurately reflects your wishes.
- Fill Out the POA Form: Complete the appropriate POA form for your region, ensuring that all information is precise and aligns with your intentions.
- Sign the Document: Your signature must be witnessed by eligible individuals as required by your local laws. This step often involves notariation to verify the authenticity of the document.
- Notify Your Attorney: Once the POA is signed and witnessed, inform your chosen attorney about their appointment and discuss your expectations and any specific instructions you have for managing your affairs.
- Keep Records: Store the POA document in a secure but accessible location and provide copies to your attorney and any relevant financial institutions.
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Frequently Asked Questions
In Australia, the requirements for witnessing an Enduring Power of Attorney (EPOA) vary by state and territory, but generally, witnesses play a crucial role. They must be adults with full legal capacity. A qualified witness is commonly a person authorised by law to take affidavits, such as a solicitor, a notary public, or a commissioner for declarations. Some jurisdictions may also require one of the witnesses to be a medical practitioner. Their presence ensures the legality and validity of the EPOA.
An Enduring Power of Attorney typically comes into effect as soon as it is signed and witnessed. However, the document allows for flexibility. The principal can stipulate a different commencement date or condition, such as activating the EPOA only upon their medical incapacitation, as confirmed by a medical professional. This flexibility empowers the principal to make decisions that align with their specific circumstances and wishes.
An Enduring Power of Attorney ends upon the death of the principal. The principal can also revoke it while they have the mental capacity to do so, or it may end if the appointed attorney becomes unable to act due to death, incapacitation, or other legal reasons. In some jurisdictions, divorce or the dissolution of a civil partnership may also terminate an EPOA if the spouse or partner was appointed as the attorney.
Principals have the right to revoke or change their enduring power of attorney as long as they retain the mental capacity to do so. This process involves completing a formal revocation document or creating a new power of attorney, which automatically revokes the previous one. It is crucial to communicate any changes to the relevant parties, including the previously appointed attorneys.