There comes a time when we find ourselves in a situation where we can’t make decisions. When this time comes, we worry about what happens to everything and everyone we care about. This is why having a will in place is important.
Understandably, some people will choose to make provisions for someone to make important decisions for them if they’re not able to. This is where an Enduring Power of Attorney in NSW comes into the picture. Stay on this page as we talk in-depth about Enduring Power of Attorney (EPA) and why people need it.
Enduring Power of Attorney (EPA): What Is It?
As you may already know, a general Power of Attorney allows someone to make decisions if they’re unable to make them for a period of time. An Enduring Power of Attorney (EPA), on the other hand, is different in that it operates specifically if and when the individual doesn’t have the capacity to make decisions. This EPA is basically a legal document that usually takes effect when the individual loses the capacity to manage their affairs.
With this EPA, you can appoint someone you trust to make decisions for you if you no longer have the capacity to do so. These decisions can apply to legal and financial affairs as well as your property. You may nominate these areas for your enduring attorney to make decisions on your behalf.
In the Australian Capital Territory, Queensland, and Victoria, it’s possible to also give authority to your enduring attorney to make decisions around personal, health, and well-being matters. You just have to ensure that your EPA is drafted correctly so that even if the worst happens, you can rest assured that your best interests will be taken care of.
Why Have an EPA?
When you have an EPA in place, you can have the comfort of knowing that someone you trust has the legal authority to make the decisions that need to be made if something happens to you and you lose the capacity to decide things. With a correctly drafted EPA, you can nominate any person you trust and give them the authority to make decisions on your behalf. The EPA covers:
- what decisions can be made;
- what to consider when making a particular decision;
- any limitations to making such decisions; and
- when to make the decisions on your behalf.
In simplest terms, an EPA means you have someone to make the decisions in any way that you would want them to be made.
What Can an EPA Do?
To understand how Enduring Power of Attorney in NSW works, let’s go over the things that an EPA can do.
- appoints anyone over the age of 18 years to assist an individual with money or property. (It can be a relative, friend, or professional adviser. It does not have to be a solicitor or lawyer.)
- authorises the appointed person/s to operate bank accounts
- can enable the appointed person/s to vote at meetings and sell property
Attorney’s Control of Decisions and Powers
Your attorney can make decisions about your property or financial affairs—from operating bank accounts, paying bills, and selling or buying property (house or shares) on your behalf. Whether it involves accessing cash or making investments, you can control the power you give to the attorney. This is done by placing limits or conditions in the EPA.
An enduring attorney is given limited authority to do specific tasks like paying bills but not selling property.
Should you wish to limit your attorney’s powers, seek legal advice about the best way to do this.
When an Enduring Power of Attorney Starts
You have the freedom to decide when you would like your enduring power of attorney to commence. Ideally, you want your enduring power of attorney to start immediately after appointing the person you want to act legally on your behalf. When drafting your EPA, you have to make it clear when you want it to start.
If not, then it will start when the person accepts the appointment and signs the EPA.
When an Enduring Power of Attorney Ends
Your enduring power of attorney ends when you revoke it, granted that you have mental capacity at that time. Other conditions include the following:
- when the appointed attorney dies and can no longer act on your behalf;
- when 2 or more attorneys are appointed but one of them dies or can no longer act as an attorney; and
- on your death.
How to Appoint an Enduring Power of Attorney?
It’s worth noting that an EPA document is just as important as a Will. This is why it’s best to obtain legal advice when drafting the EPA according to your specific wishes. To give you an idea, this is how the process of appointing an attorney works:
An EPA must include a witness’s certificate completed and signed by witnesses. The witness must be present during signing. These people can be your witnesses as you affix your signature on the EPA document and complete the certificate:
- Australian barrister or solicitor
- Registrar of a state Local Court
- Employee of the Public Trustee or private trustee company who has completed an approved course
- Licenced conveyancer
- Qualified overseas lawyer
There is no requirement to register the enduring power of attorney, but there is a registration fee. You have to complete the registration process so that it may be more easily accepted as evidence that your attorney has authority to deal with your financial affairs. By registering, your EPA will be on record as a public document and kept safe from loss or destruction.
Draft Your EPA with Absolute Legal Services
Take note of the mentioned points if you are considering appointing an attorney to act on your behalf. You will also need legal advice when drafting an enduring power of attorney in NSW to ensure everything meets your terms. Should you decide to draft your EPA, don’t hesitate to get in touch with Absolute Legal Services.
Our legal team is always ready to assist you in the process of writing your EPA. We also provide estate legal services to help with property matters.