Simpson Western acknowledges the stress families go through when a loved one loses capacity and is no longer able to manager their own personal and property affairs.
What is an EPA?
An EPA is a legal document under which you may appoint a specific person or persons (attorney) to manage your affairs and make decisions for you if you lose your capacity.
Who should have an EPA?
Everyone over 18 years old.
Loss of capacity includes age-related illness such as dementia as well as temporary incapacity, for example an accident resulting in a coma. EPAs can only be signed while the donor is mentally capable, so must be signed before they are needed. Without an EPA, your spouse or next of kin cannot automatically make decisions for you if you lose capacity.
What decisions can my attorney make for me?
There are two types of EPA: Property and Personal Care and Welfare.
Decisions regarding your property could include:
- accessing cash held in your bank accounts;
- buying or selling any houses or real property you own;
- dealing with third party companies to arrange bill payments.
Unless your EPA states otherwise, your attorney cannot use your property to benefit themselves or any other person unless specifically authorised by you.
Decisions regarding your personal care and welfare could include:
- a permanent change to where you live;
- entering into residential care;
- consenting to a major medical procedure.
It is important that you trust whoever you appoint as your attorney implicitly, at all times your attorney must keep your best interests as their paramount consideration in whatever they do.
Can an EPA be contested?
Yes.
If the appointed attorney(s) is not acting in the best interests of the donor, then the concerned party can apply to the Family Court to have the attorney(s) appointment reviewed/discharged.
What if there are no EPAs?
In the event your loved one loses capacity and has not appointed an attorney, this will result in the need for applications to the Family Court (under the Protection of Personal and Property Rights Act 1988 (PPPR)). Someone (or people) can be appointed by the Court to manage their personal and/or property affairs.
Are your obligations different as a EPA as opposed to those under a PPPR Order?
Yes.
Those who are appointed as a property manager pursuant to PPPR Orders will have an obligation to complete financial reports for the Court on an annual basis (at least). EPAs can include conditions requiring your attorney to report to or consult with any other person(s) you name in your EPA, but these conditions are optional.
PPPR Orders are reviewed by the Court every three years initially. EPAs are not reviewed by the Court.
How much does this cost?
Preparing EPAs is the significantly cheaper and simpler option. Going to Court to have PPPR Applications decided is a much more expensive (financially, timely and emotionally) process. However, when this is required, we work hard to be as cost effective and efficient as possible.
We’re here to help
We regularly assist our clients by:
- Giving clients initial advice regarding EPA and PPPR related matters
- Preparing EPAs
- Preparing court documents
- Guiding you through the Family Court processes
- Negotiating settlements
We endeavour to make the process as smooth and efficient as possible. Get in touch with our team here.
