When an EPA comes into effect
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.
A personal care and welfare EPA only comes into effect if a medical professional or the Family Court determines that you are mentally incapable.
For a property EPA, you can choose to either:
- have the EPA come into effect at a time of your choosing while you are mentally capable (for example if you are moving into assisted living and would like a loved one to manage the sale of your house), or
- only come into effect if you become mentally incapable.
The “donor” is the person who is making the EPA.
An “attorney” is the person appointed in the EPA to make decisions for the donor if they can’t decide for themselves. This person does not have to be a lawyer.
Defining “mentally incapable”
A person becomes mentally incapable when a medical professional or the Family Court judges that they lack the capacity to make certain decisions or manage their affairs.
Personal care and welfare
For a personal care and welfare EPA, the donor becomes mentally incapable if they are no longer able to:
- make decisions about their personal care and welfare
- understand those decisions
- know the consequences of those decisions, or
- communicate those decisions to others.
For a property EPA, the donor become mentally incapable if they are no longer able to manage their own property affairs.
Determining if someone is mentally incapable
The law assumes that you can make, understand and communicate decisions about your property, personal care and welfare unless it is proven otherwise.
Your attorney can’t make decisions on your behalf without a medical certificate stating that you are mentally incapable.
You cannot be presumed to be mentally incapable just because:
- someone has arranged for your mental capacity to be assessed
- you are making decisions the average person wouldn’t make, or
- you have been committed for treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
To be judged mentally incapable, you must be assessed by a health professional who is qualified to assess mental capacity, for example:
- a GP
- a doctor specialising in the care of older people, or
- a mental health nurse.
In your EPA, you can:
- name the health professional you want to do the assessment, for example your family doctor, or
- specify the type of practitioner you want to do the assessment, for example a doctor specialising in the care of older people.
Challenging the decision
If you do not agree with the decision the health practitioner has made, you can:
- ask to be referred to a specialist (such as a Geriatrician)
- challenge the assessment through the Family Court.
If you choose to go to the Family Court, they will look at:
- medical evidence about your memory and comprehension, your ability to focus on issues and to exercise and express judgment and opinions
- affidavits (sworn statements) from family, friends and health professionals.