Power of Attorney

Power of Attorney

What is a Power of Attorney?

A Power of Attorney is a legal document in which one person gives another the authority to make financial and legal decisions on his or her behalf.

The person giving a Power of Attorney is called the “Donor” (i.e. you) and the person who accepts the power is called the “Donee”.

What is an Enduring Power of Attorney? (“EPA”)

An “ordinary” Power of Attorney ceases to have effect as soon as the Donor is found to be incapable of making decisions (e.g. mental incapacity due to injury or illness).

An EPA will allow the Donee to commence or continue to have legal decision-making power after the Donor has lost the ability to make decisions for himself or herself, but whilst the donor is still alive.

Do I have to give a power now?

No, not necessarily. An EPA may be written in two ways:

  1. To come into effect immediately and to continue after the Donor loses capacity; or
  2. To come into effect only when the Donor loses capacity.

The important thing to understand is that you can only give an effective EPA when you have legal capacity at the time you give the power, i.e you are capable of understanding the nature of what you are signing.

Do I have to give an EPA?

No. You can still elect to write an ordinary and/or limited Power of Attorney. This will specify exactly what you wish the person to be able to do on your behalf. You can also nominate the length of time that it is to operate. But, an ordinary power of attorney will not be effective during the Donor’s incapacity.

Why would I choose an EPA?

Accidents, sudden illness or disability or absence from the jurisdiction can occur at any time and may disrupt your lifestyle and affect your legal capacity. At these times it is likely that you will need someone to be able to manage your legal and financial affairs.

If you exercise powers in a business or under a Family Discretionary Trust deed, an EPA can allow the powers to be exercised during your incapacity.

Who Can I Choose?

You may choose whoever you feel you can trust to look after your affairs and who is a responsible adult. This may be your spouse or partner, another family member, trusted friend, accountant or lawyer.

You may have one person as sole Power of Attorney, OR two people who act together (Joint Power of Attorney) ORtwo people who may act together or separately (Joint and Several).

How do I draw up an Enduring Power of Attorney?

The experienced lawyers at WN Legal will draw up your EPA and answer any of your questions.

What will it cost?

At WN Legal, we charge a fixed fee for simple EPA’s and we will quote the fee before the work is done. If there is any likelihood of land/property transactions, then the EPA should be registered at Landgate. There is a fee payable to Landgate for registration of the EPA.

Special note to people with early onset of Alzheimer’s Disease and their relatives.

A Power of Attorney whether it is enduring or not, can only be signed when the Donor has decision-making capacity.

It is very important to gain the opinion of a doctor and other professional people involved in the care of your family member if there is any concern about capacity. They need to be able to attest to the person’s competence to sign the Power of Attorney. It may be advisable for the witnesses to note why they believe that the Donor is competent to sign.

What do I do with the Enduring Power of Attorney once it is completed?

Keep the original in a safe place, and make a copy for your Donee. He or she can then produce it when necessary.