Enduring powers of attorney: Planning ahead by choosing someone to make decisions for you
When your EPA attorney can start making decisions for you
When does an EPA come into effect?
Protection of Personal and Property Rights Act 1988, ss 97(4), 98(3)
An attorney’s power to make decisions under an EPA for personal care and welfare can only come into effect once you’ve become mentally incapable (“mentally incapable” is explained below). So as long as you’re still able to make your own decisions and tell others about your decisions, your attorney can’t use the power in the EPA to make decisions on your behalf.
By contrast, an attorney’s power to act under your property EPA can begin before you become mentally incapable, if that’s what you’ve specified in your EPA.
What exactly does it mean to be “mentally incapable”?
Protection of Personal and Property Rights Act 1988, s 94
For a personal care and welfare EPA, you’re “mentally incapable” if:
- you’re unable to make and understand decisions about your care and welfare, or you’re unable to foresee the consequences of those decisions, or
- you’re unable to communicate decisions that you make about your care and welfare.
For a property EPA, you’re “mentally incapable” if you’re not completely competent to manage your own money and property.
Who decides whether I’m “mentally capable”?
Protection of Personal and Property Rights Act 1988, ss 97(5), 98(3)
To start making minor decisions about your care and welfare, the attorney can make their own assessment of your “mental capacity” – they can validly start making these kinds of decisions for you if they believe on reasonable grounds that you’re mentally incapable. But for any significant decision about care and welfare, and for any decision at all about your property, your attorney has to get an assessment and a medical certificate from a doctor or other health professional (see the next heading).
A “significant” care and welfare decision is one that will, or probably will, have a significant effect on your health, well-being or enjoyment of life – for example, deciding whether you should go into residential care, or have a major medical operation.
Who can give a medical certificate about your mental capacity?
Except for more minor decisions about personal care and welfare, the decision about whether you’re mentally incapable must be made by an appropriate health professional – this must be a registered doctor, nurse or other health practitioner, and they must be qualified to assess people’s mental capacity. This could be for example, a GP, a geriatrician (a doctor who specialises in conditions that older people commonly get), or a mental health nurse.
In your EPA you can specify that the decision should be made by a specific type of health practitioner, like a geriatrician.
When they assess your mental capacity, this will include looking at:
- medical evidence about your memory, comprehension, ability to focus on issues, and ability to exercise and judgment and express it
- statements from family, friends and health professionals who’ve been in a position to observe you.
Assessments must start with the assumption you’re “mentally capable”
Protection of Personal and Property Rights Act 1988, s 93B
The law assumes you’re competent to manage your own money and property and to make and understand decisions about their personal care and welfare, unless and until it’s proven otherwise.
The person assessing you can’t assume that you’re mentally incapable simply because:
- someone has arranged for your mental capacity to be assessed, or
- you’re doing or planning things that an average person in the same situation might not do, or
- you’re having compulsory mental health treatment (see the chapter “Mental health”).
What happens if I get back my ability to make decisions?
Protection of Personal and Property Rights Act 1988, s 100A
If you lost your “mental capacity” for a time (perhaps because you were quite ill for a while), but you’re OK again now, you can suspend your attorney’s power to act under the enduring power of attorney by giving them written notice. This suspension notice doesn’t cancel (“revoke”) the enduring power of attorney. But after this your attorney won’t be able to make decisions for you under the EPA without an assessment from a health professional or a ruling from the Family Court that you’ve again become mentally incapable.
You can also cancel (“revoke”) an EPA completely at any time while you’re “mentally capable” (see “Can I change my mind about giving someone an EPA?”).
