The importance of putting an Enduring Power of Attorney in place before it’s too late…

An elderly lady had owned and lived in her home for many years, since her husband passed away.  Over time she had slowly started showing signs of dementia, doing things like forgetting to lock the door or turn stove elements off.

Her children decided it would be a good idea for her to move in with one of them and for her house to be sold. They went to a lawyer to discuss selling the property.

They were surprised to find that because of their mother’s lack of mental capacity, she couldn’t sign an Agreement to sell the property.  Her children thought they could sign on her behalf automatically, which is not the case.  She had not appointed anyone as her Power of Attorney, so they did not have the right to sign on her behalf.

Unfortunately the above scenario is not uncommon.

Nor are they limited to the elderly, as people at any age are unfortunately involved in accidents which affect their mental capacity, leaving no one to make decisions on their behalf.

EPOA’s – What is an Enduring Power of Attorney?

Enduring Powers of Attorney are documents where you can appoint someone to make decisions on your behalf if you are unable (or unavailable) to do so yourself.

There are 2 types of EPOA:

  1. In relation to your Property;
  2. In relation to your Personal Care and Welfare (medical matters);

Many rest homes require EPOA’s to be in place before they will admit a resident.

EPOA’s need to be made through a legal advisor as there are strict rules around them.

Related information

What happens if I don’t make an Enduring Power of Attorney before I am deemed mentally incapable?

Without an EPOA in place, the only way that your children could be appointed to act on your behalf is through the process of applying to the Court to be appointed your Property Manager or Welfare Guardian, which is time consuming and much more expensive than preparing an Enduring Power of Attorney.

Can’t my partner sign things on my behalf?

It is not uncommon for people to assume that their partners can sign things on their behalf, but this is not generally the case.

Your partner will generally be able to sign in relation to jointly owned property (depending on the type of property), but will not be able to deal with any accounts, policies or possessions if they are in your sole name.

When should I consider creating an EPOA or reviewing my EPOA if I have one?

Every adult should have Enduring Powers of Attorney, as accidents affecting mental capacity can happen to anyone at any time.

However, here are some key events in your life that should cause you to particularly consider an EPOA, or if you already have one, to update it:

  • Getting married, separated or divorced
  • Entering into or ending a de facto relationship
  • Travelling overseas
  • Buying a house
  • If you are experiencing health concerns or failing health
  • If it is possible that you may be moved into an aged care facility in the near future

Caring for someone who has lost their mental capacity…

The law can still help when a person loses the mental capacity to make decisions, but they do not have an Enduring Power of Attorney in place. Without a current valid EPA it means that there is no appointed person or attorney who has the power to make decisions for the person who no longer has the required mental capacity.

Of course, without mental capacity it is too late to make an EPA.

The Protection of Personal and Property Rights Act provides for a person, usually a relative, to apply to the Family Court to obtain orders which allow them to make decisions for the person who has lost their mental capacity.

Positions that are commonly applied for under the Act are:

  • Welfare guardians,
  • Property managers,
  • Property administrators.

Application to appoint a welfare guardian...

A welfare guardian is a person who has the power to make decisions for a person in relation to matters concerning their personal care. These matters may include:

  • standard medical care,
  • where the person lives,
  • their ongoing care arrangements.

A welfare guardian must act in the best interests of the person who has lost their mental capacity.

For the Court to appoint a welfare guardian, the person who it is to help must meet the criteria of a failed mental capacity test usually conducted by a doctor, psychiatrist or geriatrician, and the potential welfare guardian must be a suitable person to help.

Application to appoint a property manager...

A property manager is a person who deals with all of the affected person’s property or certain parts of it. More than one person can be appointed as a property manager at the same time.

In order for a person to be appointed as a property manager, the same criteria tests must be met as for a welfare guardian set out above.

Application to appoint a property administrator...

A property administrator has the power to administer specific pieces of property as set out in the application. However, the property must not be worth more than $5,000, or generate more than $20,000 income each year.  

If these amounts are exceeded, in most cases the Court will require a Property Manager Order to be made. If the amounts are slightly over, new values can be obtained (if for example the assets are motor vehicles or personal items), or if income varies from year to year the Court will look at the last 12 months.

To be appointed as a property administrator, the same criteria as above must be met in terms of capacity and suitability.

If an attorney or property manager is unsure as to a decision that they need to make for the person, they can apply to the Court for directions.

If you are a relative of, or someone close to, the person who has lost their capacity and you are concerned about the actions an attorney has taken or is proposing to take, you can apply to the Court to have those decisions reviewed.

Here at Rainey Collins we will work closely with you to guide you through all aspects of the above applications, and issues involving a loved one that may be suffering from mental incapacity and who is unable to make decisions around their care and property. 

We are able to advise you what is best for your situation.

Call us for a relaxed friendly chat on 04 4736 850 or email us at