When an EPA comes into effect
Please note, the language in this guide has been simplified to facilitate understanding of Enduring Powers of Attorney. Where any language appears to conflict with that contained in the relevant legislation (generally, the Protection of Personal and Property Rights Act 1988) the relevant legislation should be referred to instead.
What happens when your enduring power of attorney (EPA) comes into effect.
How it works
An enduring power of attorney, also known as an EPA, is a legal document that gives someone else the authority to make decisions for you if you are no longer able to make decisions for yourself. You can give someone authority to make decisions either generally or in relation to specific matters, and this can be subject to conditions and restrictions. There are some decisions that attorneys cannot be authorised to make. For example, a personal care and welfare attorney cannot refuse you being given any standard medical treatment or procedure intended to save your life or prevent serious damage to your health.
Creating an enduring power of attorney
Personal care and welfare EPA
A personal care and welfare EPA comes into effect when you no longer have capacity to make decisions. Whether you have capacity will depend on the type of decision that your attorney wants to make.
For an attorney to make significant decisions on your behalf, a health practitioner must have certified (or the Family Court must have decided) that you no longer have capacity to make decisions. This could be a GP, a doctor specialising in the care of older people, or a mental health nurse.
A significant decision is one that would have a large effect on your health, wellbeing or enjoyment of life (for example a permanent change in address, entering aged residential care or undergoing a major medical procedure).
Your attorney can act on your behalf for any other matters (that are not significant) if they have reasonable grounds for thinking you no longer have capacity.
In day-to-day life, people tend to make decisions in consultation with others. If you have a degenerative condition that impacts your ability to make decisions, it’s likely that your attorney will support you to make decisions and that this support will increase overtime.
This may involve helping you understand the decision that needs to be made, the possible impacts of that decision and communicating the decision.
Property EPA
For a property EPA, you can choose to either:
- have the EPA come into effect at a time of your choosing while you have capacity to make decisions (for example if you are moving into assisted living and would like someone to manage the sale of your house) and to continue to have effect if you lose capacity to make decisions
- have the EPA only come into effect if you lose capacity to make decisions. If you choose this option, your attorney cannot act on your property matters unless a health practitioner has certified (or a Family Court has decided) that you no longer have capacity to make decisions.
Determining if someone no longer able to make decisions
The law assumes that you can make, understand, and communicate decisions about your property, personal care and welfare unless it is proven otherwise.
You cannot be presumed to lack capacity to make decisions just because:
- someone has arranged for your capacity to make decisions to be assessed
- you are making decisions someone else wouldn’t make
- you have been committed for treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1992
In your EPA, you can:
- name the health practitioner you want to do the assessment, for example your family doctor
- specify the type of health practitioner you want to do the assessment, for example a doctor specialising in the care of older people
Personal care and welfare
For a personal care and welfare EPA, you will be considered to lack capacity to make decisions if you are no longer able to:
- make decisions about your personal care and welfare
- understand those decisions
- know the consequences of those decisions (or know the consequences of failing to make personal care and welfare decisions), or
- communicate those decisions to others.
Property
For a property EPA, you will be considered to lack capacity to make decisions if you are no longer wholly able to manage your own property affairs.