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It’s been a hot topic recently with a number of people asking us how General and Enduring Powers of Attorney work.
A general power of attorney gives another person (your attorney) authority to deal with your property while you are unable to do so, such as while you are overseas. However, this does not include making healthcare decisions. This power of attorney ceases to be effective if the donor (the person delegating power to their attorney/s) loses mental capacity.
To overcome this, the Protection of Personal and Property Rights Act 1988 (PPPR Act) provides for something called an Enduring Power of Attorney(EPA). An EPA is valid even after the donor loses mental capacity.
EPAs should make clear the extent of the attorney’s authority to act on your behalf and whether and whom the attorney must consult or provide information when making a decision. The documents need to be signed and witnessed by the donor in the presence of a lawyer or other authorised witness who has explained to them the effects and implications of the power and has satisfactorily answered any questions you may have.
The two types provided for in the act are; EPA in relation to property and EPA in relation to personal care and welfare. These two types differ in several important respects.
Enduring Power of Attorney in Relation to Property
An attorney for property matters can act for you while you are mentally capable and after you become mentally incapable. You can appoint more than one attorney to act at the same time, either jointly (making all decisions together) and/or severally (able to make a decision independent of each other).
Enduring Power of Attorney in Relation to Personal Care and Welfare
Unlike for property matters, personal care and welfare attorney’s powers cannot take effect unless the donor becomes mentally incapable.
Also unlike property matters, it is not possible to appoint joint attorneys for personal care and welfare matters. Only one attorney can work at a time, however, you can appoint one or more Successor attorney/s should the previous attorney’s appointment end. A successor attorney’s powers do not take effect until that occurs.
Ending an Enduring Power of Attorney
Pursuant to the act, an attorney’s overriding concern when making any decisions on your behalf must be the promotion and protection of your best interests. The court may be asked to review the decisions of attorneys. Your attorney/s should be someone you trust to manage your property on your behalf and/or to make decisions about your personal care and welfare. All attorneys must be aged 20 or older, not bankrupt, and not mentally incapable themselves.
An attorney’s powers under either type can be terminated or suspended by the donor giving the attorney/s notice in writing while the donor is still mentally capable to do so. This does not have to be done through a lawyer. If the donor gives written notice to only one attorney, any other attorney/s and/or successor attorney/s can continue working until their powers are revoked.
All powers of attorney, both general and enduring, cease immediately upon death and the provisions of the deceased’s will, if they have one, come into force. Both wills and EPAs are standard pre-conditions for moving to a retirement village and is generally good sense for anyone else planning the handing over of their affairs.
At Wakefields Lawyers, we are happy to answer all of your asset planning and succession questions. We offer fixed fees for preparing wills and/or Enduring Powers of Attorney as this gives our clients the certainty their property and personal care matters will be taken care of if they lose mental capacity and when they pass on.
Give us a call on 04 970 3600 or send an email to info@wakefieldslaw.com to book a consultation to discuss your needs today.
