Enduring powers of attorney: Planning ahead by choosing someone to make decisions for you
How to create an enduring power of attorney (EPA)
Should I appoint different attorneys for care and welfare and for property?
If you want you can appoint the same person to be both your attorney for personal care and welfare and your attorney for property, or you can choose different people (and you can have more than one person for the property EPA). In making your decision, remember that the personal skills needed to look after someone’s personal care and welfare are different from those needed to look after someone’s finances and property, which usually require some business knowledge.
If you do appoint different people, they have to consult with each other regularly.
Requirements for creating a legally valid EPA
In September 2008 new and additional requirements were introduced for making a legally valid enduring power of attorney. This section of the chapter explains all the current requirements. If you made your EPA before 25 September 2008, your signature only had to be witnessed by an independent person and there was no requirement for your witness to complete and attach a certificate. The new requirements introduced in 2008 place more responsibility on your witness – they have to be a lawyer or someone with professional knowledge about EPAs and they have to explain to you the effect of your EPA.
To be valid, your enduring power of attorney has to meet these requirements:
- The right form – You have to use a particular form when you make your enduring power of attorney. These are available from lawyers, Public Trust and other trustee companies. You can also download a copy of the form from the Office of Senior Citizens website –
- Signatures – You and your attorney (or attorneys) must sign the EPA.
- Witnesses – Your signature has to be witnessed by either a lawyer, a qualified legal executive with at least one year’s experience (they must be working for and directly supervised by a lawyer), or someone from a trustee company like Public Trust. The attorney’s signature also has to be witnessed, but this can’t be by you or your own witness.
The witness to your signature has to be independent of your attorney. However, if the attorney is a trustee company, a person from that company is allowed to witness your signature, and if you’re appointing your attorney in their capacity as a lawyer, another lawyer or legal executive from the same law firm can witness your signature. The witness also has to sign a certificate saying that they’re independent of your attorney (unless one of those exceptions for trustee companies or lawyers applies).
- Understanding the EPA – Before you sign the EPA, your witness must explain its effects and implications to you. They must also explain your legal rights, including your right to suspend or cancel the power of attorney. Your witness has to provide a statement (in a certificate attached to the EPA form) saying they believe on reasonable grounds that you understand the EPA and its potential risks and consequences, and that you’re not being pressured by anyone to sign the EPA. This certificate also has to say that the witness has no reason to suspect you may be mentally incapable.
Note: Despite the requirement for independent witnesses, if a couple or any other two people appoint each other as attorneys they can use witnesses who work in the same law firm or trustee company as each other. They’re even allowed to use the same person as witness, if that witness is satisfied there’s no real risk of a conflict of interest.
Special COVID-19 signing rules
For the COVID-19 emergency period (24 April to 24 September 2020) there are less strict rules around signing your EPA, so that the signatories (you, your attorney and the witnesses) are allowed to be in different places.
Do I need a lawyer if I want to create an enduring power of attorney?
You’re not legally required to have a lawyer, as your witness for the EPA can be either a lawyer, a qualified legal executive, or a representative from a trustee corporation.
However, there are a number of advantages to getting full, independent advice from a lawyer with experience in this area. They can advise you about what terms you might want to include in the EPA and they can make sure it properly expresses what you want to happen.
Optional provisions you can include in your EPA
There are some issues that an EPA must deal with – for example, an EPA for property must state whether your EPA decision-maker (attorney) can start making decisions on your behalf immediately while you’re still “mentally capable”, or whether they can do this only if and when you lose your “mental capacity”.
An EPA can also include a number of optional provisions:
- Consultation – You can name people who your attorney has to consult with whenever the attorney makes decisions or particular kinds of decisions.
- People who have to be kept informed – You can name people who your attorney has to keep informed about decisions they make under the EPA, if those people ask for this information. You can also specify the kinds of information you want your attorney to provide.
- Who’ll assess your mental capacity – Your EPA can specify the particular type of health professional who’ll do the assessment, such as a geriatrician (a doctor who specialises in the conditions that commonly affect older people), so long as it’s an area of practice that includes assessing people’s mental capacity.
- Benefits for the attorney – If you make a property EPA, you can say whether your attorney is allowed to do things that will benefit them financially or benefit some third person. With some exceptions, attorneys can’t benefit themselves or other people if the EPA doesn’t specifically allow this.
- Back-up attorneys – Your EPA can specify another person (a “successor attorney”) who’ll take over as your attorney if the first attorney becomes unable to act – for example, if they die or become ill.
- Wills – An EPA can specify that your property attorney can make a will for you, if the Family Court has authorised the attorney to do this.
Note: As well as making your EPA, you also might want to consider making an advance directive about future medical treatment. This is a set of instructions about the kinds of treatment you do or don’t want to receive if you lose the ability to give informed consent (for example, if you’re in a coma after a car accident). For information about advance directives (sometimes called “living wills”), see the chapter “Disability rights”, under “Health and disability services”.
Information to include in property EPA
When you make an EPA for your property, you should tell your EPA decision-maker what you own, where your possessions and documents are kept, and what your exact wishes are.
- list all your main assets, including your house, car, bank accounts, life insurance policies, furniture and jewellery. You should also list any money owed to you or other assets that you’ve lent out.
- list your debts and other liabilities (for example, that you’re a guarantor for someone’s loan)
- tell your attorney where you keep your important documents, like the title deed to your house, birth certificate, and insurance policies
- decide what things you want your attorney to able to do on your behalf – these powers can be as limited or as wide as you choose
- specify when the EPA comes into effect – this can be immediately, or only if and when you lose “mental capacity” and become unable to manage your property affairs.
If you specify in your EPA that it will take effect only when you become mentally incapable, your attorney can’t act on your behalf unless a doctor or other appropriate health professional has certified that you’re mentally incapable or the Family Court has decided this.