ALPHABET SOUP -EPA/PPPR DECODED

Lawyers love a good abbreviation. Far more than obscure and pretentious Latin phrases, abbreviations are staples in the legal-ese language. On any given day we will be dealing with A+Is, LTTSs, OIOs, COAs, LAs, ASPs, FPAs, ADRs, JPs, RPAs…

You get the picture.

Two abbreviations you may have heard tossed around are EPAs (or EPoAs) and PPPR. Both address circumstances where a person has lost their mental capacity to make decisions for themselves. This blog will give you a rundown of what they are, what it means for you, and what happens if you do not make the proper arrangements.

EPAs (or EPoAs)

Our first abbreviation concerns Enduring Powers of Attorney. EPAs are documents that outline a person’s wishes in the event that they can no longer make decisions for themselves. An EPA appoints someone to make those decisions on your behalf (their ‘Attorney’). There are two types of EPAs that should be in place namely:

• One for Property (bank accounts, managing investments, etc.)
• One for your Personal Care and Welfare (where a person lives, what treatments they receive, etc.)

For decisions over Property matters, a person can choose for their Attorney to make decisions for them while they are mentally capable. This is different and in contrast to decisions about your personal care and welfare matters that can only be made by your appointed Attorney if you have lost capacity.

‘Capacity’ is determined by a relevant medical practitioner. You would not see a podiatrist handing out capacity assessments. ‘Capacity’ is also a very fluid concept. As anyone who has worked with people suffering from the early stages of dementia or Alzheimer’s will know, people have good days and bad days. Losing capacity is not always permanent, and if an Attorney was acting on your behalf, they would have to cease acting if you were judged to be mentally capable once more.

A clear example is in the case of a coma. Clearly, a person does not have the capacity to make decisions for themselves while in a coma.

Say Maria is in an unfortunate accident and ends up in a coma. There could be some major decisions that would need to be made on her behalf. Bills may need to be paid or long-term decisions involving the sale of the house may need to be made. There may also need to be decisions made about treatment or the level of care that is required for her.

Luckily for Maria, she had recently completed EPAs, appointing her sister Anna as her Attorney for both her property matters and her care decisions. Anna has the legal authority to instruct Maria’s bank to continue paying the mortgage and house insurance from Maria’s accounts. Anna is also able to discuss Maria’s care options with the doctors who are looking after her and can consent on Maria’s behalf to their recommendations (with some exceptions).

Luckly for Maria she had recently completed EPAs, appointing her sister Anna as her attorney for both her property matters and her care decisions. Anna has the legal authority to instruct Maria’s bank to continue paying the mortgage and house insurance from Maria’s accounts. Anna is also able to discuss Maria’s care options with the doctors who are looking after her and can consent on Maria’s behalf to their recommendations (with some exceptions)

Maria comes out of the coma a month later and is judged to be mentally capable, and Anna is no longer the acting Attorney.

But what if Maria had not completed EPAs prior to losing capacity? That brings us to the second half of this blog: PPPR.

PPPR (or ‘Triple P R’)

The PPPR stands for the Protection of Personal and Property Rights Act 1988. This Act contains many mechanisms to protect a person’s rights, but the relevant section for this blog is the appointment of Property Managers and Welfare Guardians.

If a person has not made EPAs, only the Court can decide who should have the right to make decisions on their behalf. Again, a relevant medical practitioner would have had to judge a person as having lost capacity. The Court then appoints a lawyer for that person who has lost capacity (called Lawyer for Subject Person).

Returning to our good friend Maria. If Maria had not completed EPAs, Anna would have to apply to the Courts to be appointed as a decision-maker. The Court would consider the application: is Anna the best person to be doing these roles? Is there anyone else in Maria’s family or among her friends who would be better? Has Maria’s immediate family agreed for Anna to be appointed? Does Maria own any of her property jointly with someone else, and how are their rights going to be impacted? Family members could even contest Anna’s application if they disagreed with her, and in those situations, the court would need to hear from the interested parties to determine what would be best for Maria. This process can take months.

On top of the added stress and cost of Court proceedings, Property Managers (unlike Attorneys appointed under EPAs) must report to the Court annually on everything they have done on behalf of the person who has lost capacity.

The final headache with PPPR is the timing. An Attorney remains appointed until either the person who has lost capacity regains capacity or dies, or if the Attorney resigns or is discharged by the Court for wrongdoing. PPPR appointments last 3 years – upon which you need to reapply and go through the Court process all again from the top.

People do not like considering the possibility that they may lose capacity. That is completely natural. Having EPAs can mean that your family is spared a lot of stress and cost should the worst happen.

Here at Wakefield’s Lawyers we are experienced with guiding people through both scenarios with empathy and efficiency. Don’t delay, get an EPA today. Contact Wakefield’s Lawyers on 04 9780 3600 or email info@wakefieldslaw.com

• Samantha Wood (Senior Solicitor)