Enduring Powers of Attorney – what an attorney needs to know

B2B Editor9 September 2015

Enduring Powers of Attorney – what an attorney needs to know

Your spouse, relative or friend has appointed you as their attorney under an Enduring Power of Attorney – but what does this mean for you? Here are some questions we are regularly asked by attorneys.

What is an Enduring Power of Attorney (“EPA”)?
An EPA is a legal document in which a person (“principal”) appoints another person or persons (“attorney/s”) to act on their behalf in relation to financial and property matters, personal care matters and health care matters. ‘Enduring’ means the power continues even after a principal loses capacity to make their own decisions.

When can I start acting as attorney?
The EPA will specify when your power to deal with the principal’s property and financial matters begins. The options are:

(a) immediately, once you have signed the document;

(b) on a specified date (e.g. if the principal is travelling overseas); or

(c) only once the principal has impaired decision-making capacity.

Your powers in relation to personal care matters and health care matters only come into effect once the principal has lost decision-making capacity. You may be asked to prove that the principal has lost capacity by providing a medical certificate from a doctor.

Will I need to share the role of attorney with someone else?
When more than one attorney has been nominated, the EPA will specify how decisions are to be made. You should check the EPA to find out whether you must act:

* together – the attorneys must make unanimous decisions;

* separately – the attorneys may make decisions independently of each other; or

* as a substitute – the substitute attorney can only make decisions if the primary attorney dies or is unable or unwilling to act.

What are my legal obligations as an attorney?
As an attorney, you are in an important position of trust. Your obligations are usually set out at the back of the EPA and you should make sure you understand these. As an attorney, you must:

* act in the principal’s best interests;

* keep clear financial records of all transactions;

* avoid transactions which would result in a conflict between your interests and those of the principal;

* unless otherwise specified, you can only use the principal’s money for their benefit and not for your own benefit.

What types of health care decisions can I make?
An EPA usually gives the attorney authority to consent to or refuse medical treatment for the principal. It is a good idea to talk to the principal ahead of time about their wishes to understand their attitudes and values. You should also check whether the principal has signed an Advanced Care Plan or included any directions in the EPA regarding end of life decisions or other medical treatment.

When does my power as an attorney end?
Your power to act will end if the EPA is revoked by the principal or by the ACT Civil and Administrative Tribunal or when the principal dies. On the death of the principal, you must stop using the EPA and the executors will start carrying out the terms of
the principal’s Will.

An EPA is often tailored to suit the individual needs of the principal so it is important to read the document in full and make sure you understand your obligations. If you are unsure about your responsibilities as an attorney, you should seek legal advice.

Rehana is a lawyer in the Wills and Estates team at DDCS Lawyers.
You can contact Rehana or another member of the team on (02) 6212 7600 or email:[email protected] www.ddcslawyers.com.au