Author: mad

We have had recent experiences in applying to the Family Court to appoint Welfare Guardians and Property Managers for clients who have become mentally incapable. This is a time consuming and expensive process that can easily be avoided by having Enduring Powers of Attorney in place.

An elderly man suddenly and unexpectedly became mentally incapable, unable to make decisions for himself in relation to both his personal care and welfare, and in relation to dealing with his money and assets.

The general assumption in these circumstances is that his children are automatically able to make medical decisions for him, and that they can sign on his behalf, access his bank accounts, and sell or otherwise deal with his property. This is not the case.

Another assumption is that a spouse/partner can sign on behalf of their mentally incapable partner. While this is true for some jointly owned property, it is not the case for any asset held in your sole name.

The above circumstances are not limited to elderly. People can have accidents or suffer illnesses that affect mental capacity at any age, leaving no one to make decisions for them.

What are Enduring Powers of Attorney?
An Enduring Power of Attorney (“EPA”) is a legal document that appoints someone to make decisions on your behalf.

There are two types of EPAs:

• Personal Care and Welfare
  These are concerned with medical decisions, where you live and how you are cared for. You appoint someone you trust to make decisions about your health and wellbeing. These EPAs only come into force when you become mentally incapable – when you can no longer make and communicate your decisions. You can only appoint one attorney to act at a time.
• Property
  These cover everything you own, including property, bank accounts, shares and investments. You have a choice for when property EPAs come into force. You can have them invoked only if you are mentally incapable, or you can decide that they are effective as soon as they are signed. The latter is particularly useful if you are overseas, or temporarily unavailable to deal with your finances or property.

Putting in Place Enduring Powers of Attorney before it’s too late
If you can no longer make decisions for yourself, and you don’t have any EPAs in place, it might become necessary to apply to the Family Court for an order. This is a time consuming and expensive process and can take a number of months.

The Judge will not necessarily know who you rely on and who you trust, and will be reliant on information provided to the Court when determining who out of your family and friends is able to be trusted as your attorney.

Creating EPAs give significant power over your property and personal care and welfare, so it is important that it is someone you know and trust. Without EPAs, simple tasks such as paying your bills and accessing your bank accounts can be a struggle for your family and friends.

If you have any questions about EPAs or would like to set them up, give us a call.