Everyone knows about a Will and what it does (although studies show that about 45% of the population don’t have one!). However, not everyone knows about an Enduring Power of Attorney (EPA) and an Enduring Power of Guardianship (EPG) – two of the most important documents to execute when planning your future – and what they do.
WHAT IS AN EPA/EPG AND WHY DO YOU NEED IT?
Sadly, some of us will lose the legal capacity to make decisions and manage our own affairs through illness or injury (for example due to dementia, stroke, being in a coma, Alzheimer’s Disease, mental illness, or brain injuries).
If you lose capacity to manage your own affairs, your life partner or immediate family members are not automatically entitled to act on your behalf. But you can plan ahead while you are in good health and nominate who you would like to make decisions for you by executing an EPA and an EPG.
An EPA is a legal document that allows you to appoint an attorney, someone to make decisions about your property and financial affairs, and remains valid should you lose legal capacity.
An EPG is a legal document that allows you to appoint a guardian, someone to make decisions on your behalf, should lose capacity, about where you live, what services and health care you receive, to consent to any medical, surgical or dental treatment, and about any legal proceedings relating to you.
WHO SHOULD YOU APPOINT AS YOUR ATTORNEY AND/OR GUARDIAN?
You can appoint one or two people to be your enduring attorney(ies) and/or guardian(s).
Deciding who to appoint as your attorney(ies) and/or guardian(s) is a very important decision as you are granting the appointee(s) considerable power over your life.
You should ensure that the person(s) you appoint is someone you trust and who is willing and able to take on the role. If you decide to appoint more than one person for each role, you should be confident that the people you choose will be able to work together and agree on what is in your interests.
Many people choose to appoint their life partner and/or their adult children to be their enduring attorney(ies) and guardian(s). Others prefer to appoint another family member or a trustworthy friend.
If it is the case that complicated financial affairs and large assets will need to be managed, appointing a trustworthy friend with expertise in the area, an accountant, a lawyer, or a trustee company as your attorney may be an appropriate option.
WHEN SHOULD YOU MAKE AN EPA/EPG?
As soon as possible! An EPA/EPG should be prepared and signed while you are in good health and can take the time to think about and make the right decisions for your future.
You should not wait until unforeseen circumstances force you to prepare an EPA/EPG urgently.
WHAT HAPPENS IF YOU HAVE NOT MADE AN EPA/EPG AND YOU LOSE CAPACITY?
If you lose capacity and have not executed an EPA/EPG, it will unfortunately be too late to appoint an attorney or guardian, and it will be difficult for your family to access your bank accounts and pay bills on your behalf.
A family member or someone else who is interested in your welfare will have to apply to the State Administrative Tribunal (SAT) to appoint them as your financial manager and/guardian. This can be a long and stressful process.
The SAT may require you to participate in a hearing if you able to, and they will consider your wishes, however they do not have grant your wishes if they do not believe that they are in your best interests.
In some circumstances the SAT can decide that it is in your best interests to appoint the public trustee and guardian as your financial manager and/or guardian.
It is too late to prepare an EPA/EPG if and when you lose capacity.
HOW TO MAKE AN EPA OR EPG?
Specific forms need to be prepare and signed to execute an EPA/EPG.
A lawyer can help you prepare these documents and explain their legal effect. A lawyer will also be able to give you advice on the best options available to you in your personal and family circumstances.
Illnesses or injuries that may cause us to lose our capacity to make our own decisions and to manage our own lives are not pleasant things to have to think about, however the truth of the matter is that sometimes these things do unfortunately happen. Each and every one of us should have an EPA and an EPG so that should we become incapacitated, the uncertainty and stress will not be exacerbated for us and our loved ones.
If you or someone you know wants more information or needs help or advice, please contact the team at Lynn and Brown Lawyers today.
About the author:
This article has been authored by Claudia Giovannini at Lynn & Brown Lawyers. Claudia is currently studying law at UWA and hopes to be admitted as a Perth lawyer in or about 2018.
