An Enduring Power of Attorney is a document whereby you appoint another person to act on your behalf in the event that you are no longer able to do so. 

For Property Enduring Powers of Attorney, this right can either come into effect when you are mentally incapacitated to the extent where you are unable to take care of your affairs, or immediately (e.g. to cover a situation where you are physically incapacitated).  For Personal Care and Welfare Enduring Powers of Attorney (for medical matters), this can only come into effect when you are deemed mentally incapacitated.

The person who you appoint should be someone who you trust to act on your behalf.  This person is referred to as an ‘Attorney’, who has your authority to act on your behalf.

Instances where an Enduring Power of Attorney will come to an end

It is important to be aware of when Enduring Powers of Attorney (EPOA) will come to an end.  These are as follows:

1.    When you pass away

An EPOA only applies during your lifetime, so is not to be confused with a Will.  A Will deals with your affairs after you pass away, while an EPOA allows another person to take care of your affairs while you are still alive.  An EPOA will have no effect once you have passed away.

2.    When it is revoked by you or a Court

You can only revoke or suspend an EPOA while you have the mental capacity to do so, as determined by a medical practitioner.  If you wish to revoke an EPOA you must inform your nominated Attorney in writing.  Once the notice is received, your Attorney can no longer act for you.

The Court can review the actions of the person who you granted powers to under an EPOA.  If they have reasonable cause to believe that your Attorney is not acting in your best interests or has not complied with their obligations as an Attorney, they are able to revoke the Attorney’s authority. If you have not nominated another person who can take over from them, and you have lost capacity, the Court will likely appoint someone to act on your behalf.

3.    If your Attorney can no longer act

In the event that your Attorney dies, becomes incapacitated or gives you notice that they no longer wish to act as your Attorney (in absence of a successor Attorney being nominated by you), the EPOA will cease.

In the event that your nominated Attorney is no longer willing or capable to act on your behalf and you have not nominated a back-up person (successor Attorney) to act on your behalf, then the EPOA will cease. 

If you still have capacity, you will need to create a new EPOA.  If you don’t, then a family member or other trusted person will need to apply to the Court to be your Property Manager, which is a longer and more expensive process than preparing an EPOA. 

When setting up an EPOA, it is important that you choose your Attorney wisely, and that you include at least one successor Attorney, to help cover some of the situations above.  Your legal advisor will be able to discuss your needs with you to make sure the documents give you as much protection as possible.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.