Appointing an attorney under an enduring power of attorney means that a person or people of your choice will be able to look after your property and personal care and welfare matters if you become mentally incapable of doing those things for yourself.
Mental incapacity is not solely an affliction of the elderly; it is a condition which can affect even young people as a result of an accident, stroke or early onset of degenerative conditions such as Alzheimers Disease. Once you are 18 years of age, you are old enough to make enduring powers of attorney.
You are considered to be “mentally incapable” if you lack the capacity to make decisions, understand decisions, foresee the consequences of decisions, or communicate decisions relating to the management of your property affairs or providing for your own personal care and welfare. Assessment of mental capacity must be made by a medical practitioner who is qualified in that area of practice.
There are two types of enduring power of attorney.
- A Power in Relation to Property. This can be made to be effective while you are mentally capable and will operate just like a normal power of attorney. It will not be cancelled if you later become mentally incapable.
- A Power in Relation to Personal Care and Welfare. This will only be effective, if you become mentally incapable.
It is not possible to make an enduring power of attorney when the person is mentally incapable. In such a case, an application would have to be made to the Family Court for an order appointing a manager for the person. This is not a desirable situation, as the Court process is slow and is far more expensive than the cost of making enduring powers of attorney. You do not want to be frustrated by a delay if your needs are pressing. This predicament can be avoided if enduring powers of attorney are already in place.
When you are young and in good health, it may not be easy to think about the prospect of being in a state where you can’t look after yourself and your affairs. It is advisable to put these powers in place while you still have the ability to do so.
If you are moving into a retirement village or resthome, you will almost certainly be required by the operator to have enduring powers of attorney.
When you decide to go ahead with making enduring powers of attorney, you will have a number of important choices to make:
- Whom should you appoint to be your attorney or attorneys?
- If you have more than one attorney in relation to property, will they have to act jointly, or will they be able to act separately from each other?
- Will your attorney(s) be able to act generally in relation to the whole of your property or personal care and welfare matters, or will there be restrictions on their powers?
- Will your enduring power of attorney in relation to property be effective immediately, or only if you become mentally incapable?
- Should you name a back up attorney in the event that your attorney(s) of first choice can no longer act as attorney(s)?
- Do you want your attorney(s) to consult with anyone else apart from you when they are exercising their power as attorney?
- Do you want your attorney(s) to provide anyone else with information about the decisions they have made when acting as your attorney?
- Do you want your attorney to be able to sign a will for you?
- Do your want your attorney(s) to be able to benefit themselves or others by the use of your property, or to recover from your property expenses in relation to the exercise of their powers?
- Do you want to say who should make an assessment about your mental capacity?
These are the things you will be asked about when instructing a lawyer to prepare enduring power of attorney documents for you. You will be giving another person or people a great deal of power, so it is essential that you have considered these options carefully before making your decisions.
Published: 28 February 2020