Timing of Powers in an Enduring Power of Attorney
Timing of Powers in an Enduring Power of Attorney
An Enduring Power of Attorney (EPA) is a formal document that gives one or more people the legal power to make decisions on your behalf.
Specifically, an EPA gives your nominated attorneys the power to make personal and/or financial decisions for you when you have lost the capacity to make those decisions yourself.
The timing of those powers can give you greater control over who makes decisions on your behalf and when those decisions are made.
The standard short form for an Enduring Power of Attorney is used when you wish to have your attorneys make both financial and personal decisions.
A long form is used if you wish to have one attorney make financial decisions, and another attorney make personal decisions.
This article discusses the timing of powers for personal and financial decisions in the short form.
Commencement of power
Your attorneys’ power to make personal decisions for you will commence when you are unable to make those decisions for yourself. That is, when you are incapable of understanding the decision to be made, cannot foresee the effects of that decision, and cannot communicate that decision.
Unlike personal decisions, there are different options for deciding when an attorney has the power to make financial decisions.
The power to make financial decisions will begin immediately if you do not name a date or occasion for the power to commence. However, even if you give immediate power you can continue to make decisions for yourself.
If you name a date or occasion for your attorneys to make financial decisions on your behalf, your attorneys have no power until that time unless you lose capacity to make decisions. If this occurs, then the attorneys’ power to make financial decisions will start from the time you lose capacity.
Appointment of more than one attorney
If you appoint more than one attorney, you have several options for choosing the timing of their powers and how they make decisions. You may decide that the attorneys must make their decisions unanimously, as a majority, or severally (meaning any one of the attorneys may make a decision on your behalf).
Alternatively, you may choose for your attorneys to make their decisions successively.This means that power can be given to one particular attorney once the power given to another attorney ends. Or power is given to one attorney only when the other attorney is not available to make decisions.
Ending of power
The power for your attorneys to make personal decisions will last as long as you are incapable of making decisions for yourself.
The power to make financial matters will last until it is revoked.
There are a number of other ways that an enduring power of attorney will end. These include:
- Marriage. If you get married, the power of attorney will end unless your spouse was named as one of your attorneys. Any other attorney’s powers will also end.
- Divorce. If your former spouse was one of your attorneys, their power of attorney will end.
- Death. If you die, the enduring power of attorney is completely revoked.
- Inconsistent document. If you have any later document that shows an inconsistency with the EPA form you have completed, the powers in the form will be revoked.
- Withdrawal of attorney. An attorney can chose to withdraw, thereby revoking their powers. This can be done through a signed notice or with the Court’s leave.
- Attorney becomes your carer. If you attorney becomes your paid carer or your health care provider, their power is automatically revoked.
- Attorney is incapable. If your attorney loses their capacity to make decisions on your behalf, their power is revoked.
- Attorney becomes bankrupt or insolvent. This leads to automatic revocation.
- If your attorney dies. This also leads to automatic revocation.
The options for timing of powers in an enduring power of attorney can become quite complex. If you have any questions arising from this post, please contact one of our expert estate planning lawyers by calling us on 07 3106 3016 or contacting us using the form on this page.
This article does not give legal advice and should not be relied upon as such. It is intended to provide general and summary information on legal topics, current at the time of first publication. You should seek professional legal advice before acting or relying on any of the content contained herein.
