Make sure you update your Enduring Powers of Attorney if you separate!

A couple created Enduring Powers of Attorney (EPOAs) in relation to Property and Personal Care and Welfare to each other when they first got married, meaning they had the right to make decisions about each other’s affairs and health/medical matters if the other of them was not able to do so due a lack of capacity. 

They later separated.  They dealt with division of their assets in a Separation Agreement but completely forgot that they had earlier prepared EPOAs. 

Years later, the husband had an accident and lost the capacity to make his own decisions.  By that stage he had a new partner. 

His new partner was shocked to discover that his ex-wife still had the right to make decisions about the man’s medical and property matters, as he had never revoked the EPOAs. She was worried that the ex-wife might try to retain those rights, as the relationship had not ended well.

This led to a long, stressful, and expensive process to rectify the situation.  The ex-wife eventually agreed to step down as his Attorney under the EPOAs, and the new partner then had to apply to the Court to be the man’s Property Manager and Welfare Guardian.

There a few key things to note in relation to revoking EPOAs:

• The right to revoke an EPOA at any time while the donor (the person who has given the power) has mental capacity is one of the key rights that come with an EPOA.
• The revocation must be completed in writing and delivered to the person appointed as attorney under the EPOA. 
• A new EPOA automatically revokes an earlier one.
• EPOAs are not automatically revoked by marriage, separation or divorce.  They remain in place despite those events occurring.

This could have been avoided if the man had both revoked the documents at the time he had separated, and made new ones appointing his new partner.

It pays to review your EPOAs after any major event in your life, in the same way as you would review your Will.  The consequences of not doing so could be huge, especially in a situation like a separation, given the large amount of power that is given to the Attorney under an EPOA.   Not doing so can have serious and expensive consequences.