An EPA is a legal document that lets you (the donor) appoint someone you trust (the attorney) to make decisions on your behalf. This can relate to your personal care and welfare, your property and financial matters, or both. Here is what you need to know.

What Types of EPAs Are There?

There are two main types of EPAs:

• Personal care and welfare: This only takes effect if you lose mental capacity, for example due to illness or injury. It allows your chosen attorney to make decisions about things like your living arrangements, medical care, and wellbeing.
  Property: This covers your finances, including bank accounts, investments, and paying bills. You can choose for it to come into effect immediately, or only if you lose mental capacity.

Many people choose to have both types in place, sometimes appointing different people to each role.

How Do You Set One Up?

An EPA must be completed using the correct legal forms. Both you and your chosen attorney need to sign it, but there are important rules around how this happens:

• Your signature must be witnessed by an independent person such as a lawyer, a qualified legal executive, or an authorised officer of a trustee corporation. This person must explain what the EPA means and confirm that you appear mentally capable at the time.
• Your attorney’s signature must also be witnessed, but not by the same person who witnessed yours, and not by you.

These steps help protect everyone involved and ensure that the document is legally valid.

What Does “Mental Incapacity” Mean?

The definition varies depending on the type of EPA.

• For a property EPA, it means you are no longer fully able to manage your financial affairs.
• For a personal care and welfare EPA, it means you cannot make or understand decisions about your own care or understand the likely consequences of those decisions.

Whether someone has lost capacity is assessed by a medical professional.

What Are the Attorney’s Responsibilities?

Being someone’s attorney is a serious responsibility. The attorney must always act in the donor’s best interests and keep them informed and involved as much as possible. They must follow any conditions written into the EPA and provide information to the Court or other authorised people if asked.

They must not use the EPA to benefit themselves unless the EPA specifically allows it. Misusing an EPA can have legal consequences.

When Does an EPA End?

An EPA automatically ends if:

• The donor dies
• The donor cancels the EPA while still mentally capable
• The attorney becomes bankrupt or mentally incapable
• The Court revokes the EPA, for example due to fraud, undue influence, or concerns about the attorney’s suitability

It is never too early to put one in place. From the age of 18, any adult can set up an EPA. Too often, people leave it too late, and when something unexpected happens, their family is left without the legal authority to help. In those situations, we often have to apply to the Family Court for orders under the Protection of Personal and Property Rights Act. That process is more costly, time-consuming, and regularly needs to be reviewed by the Court.

Setting up an EPA in advance is a simple step that can prevent unnecessary stress for you and your loved ones later on.

Contact our team today to get started. We offer a $50 discount for Gold Card holders.

Disclaimer: The information in this article is intended for general guidance only and should not be relied on as legal advice. While we aim to provide accurate information, it is not a substitute for professional advice specific to your situation. Please consult a qualified lawyer before taking any action based on this content.