What can my Attorney do, and when?
An Enduring Power of Attorney (EPOA) is a legal document that allows you to choose someone to be in charge of either or both of your financial matters and personal and health matters in circumstances where you cannot. Although many people see the benefit of having an EPOA in place, these documents and the powers they grant are often misunderstood. While solicitors are required to explain the effect of EPOAs to clients who wish to put them in place (‘Principals’), the persons actually receiving these powers (‘Attorneys’) generally do not have such a clear understanding of what these powers are or when they come into effect.
It is a common scenario that a person wishes to collect documentation or give instructions on the behalf of a friend or family member on the basis that they ‘have enduring power of attorney’. Unfortunately, what they do not understand is that an EPOA must be ‘activated’ before coming into effect.
How do you activate an Enduring Power Of Attorney in Australia?
Well, it depends upon what the EPOA is for, as the activation criteria are different depending on whether the EPOA is for personal health matters or for financial matters.
Regarding decisions relating to personal and health matters, an EPOA is not activated until such time as the Principal becomes incapacitated (i.e. no longer possesses the mental capacity requisite for making the relevant decision/s). Examples include situations where the Principal is comatose or suffering from dementia. Such activation is generally evidenced by a letter from the Principal’s doctor confirming the incapacitation.
There is more flexibility with respect to decisions about financial matters. With an EPOA, the power to make financial decisions may be activated:
- Upon incapacitation (as above);or
- Upon a particular date or occasion.
In any case, time frames and activation criteria should be properly referenced in the terms and conditions of the EPOA. Where powers are not activated immediately, sufficient evidence of the activation criteria will be necessary to engage those powers, such as making a decision on the Principal’s behalf. In short, you need a copy of the EPOA and supporting paperwork of the activation so that you can use your Attorney powers.
Attorneys are often unclear as to the limitations of the powers they have been granted. An EPOA grants decision-making power with respect to very specific personal and health decisions and financial decisions only. It does not constitute the unconditional power to ‘stand in the shoes of the Principal’ in any situation (also known as ‘carte blanche’).
Personal and health decisions may include, for example, decisions about living arrangements, education, diet, and whether to consent to, refuse or withdraw from particular types of health care. They do not include decisions about wills, appointing another Attorney, voting, organ donation, sterilisation, abortion or experimental healthcare.
Do I need an Enduring Power of Attorney (EPOA) or General Power of Attorney (POA)?
Financial decisions may include, for example, decisions about how the Principal’s money should be invested. Often, clients only want to grant a power in relation to financial decisions for a fixed period of time (e.g. while they are overseas). In such instances, a general Power of Attorney (POA), rather than an EPOA may be a more appropriate solution. It is very important to note though that POAs do not continue once the Principal has become incapacitated.
It is also worth noting that a Principal may make specific inclusions or limitations to the decision-making powers granted to the Attorney. Examples of such inclusions or limitations may be a restriction from investing in shares or placing the Principal in a specified care facility.
In summary, the powers granted by a POA or EPOA can be extensive, and with these powers comes the potential to misuse the powers they have been entrusted with. It is of great importance that the Principle selects an Attorney that they trust, and have faith that they will do the right thing at the time. If there is a doubt you may wish to consider choosing multiple Attorneys. In these circumstances, you may specify if decisions are to be made by majority vote or unanimous vote (i.e. all attorneys must agree). In any circumstance, when a POA or EPOA document is written, both the Principle and the Attorney/ies should thoroughly understand the powers granted by the document and also the limitations of the document.
Contact us for further legal advice or information on choosing an Enduring Power of Attorney.