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If through illness or accident, you lose the capacity to make decisions for yourself, someone else can be appointed to manage your financial affairs. You can prepare for such circumstances in your future by nominating a person to have authority over your financial affairs in such a situation. The document whereby you nominate and give authority to this person is called an Enduring Power of Attorney (EPA).
An EPA is a document that gives a nominated person absolute power to manage your financial affairs when you are not able to. Managing your financial affairs can include anything from selling property to withdrawing money from the bank. If real property (i.e. real estate) is to be dealt with, the EPA needs to be registered with Landgate at a current cost of $160.00 (subject to change).
Most people make an EPA when they make a Will. Some people think they don’t need an EPA until they get old. Unfortunately, young adults can be struck by tragedy too and it can be very difficult for family when their affairs are frozen and no EPA is in place.
If you have not signed an EPA and you become unable to manage your financial affairs, a person will have to make an application to the State Administrative Tribunal to manage your financial affairs. This may not be the same person you would wish to have control of your financial affairs. Such a situation could lead to neglect, abuse or a government body stepping in. However, even if it is a person you would have approved of, it will be a costly and time consuming exercise for them, compared to the relative economy and time efficiency of making an EPA while you are in good health.
The need for an EPA often arises suddenly and if an EPA is not in place a spouse may not be able to sell property to pay for medical expenses or access funds from a bank account. Basically, everything that requires your signature or authority is frozen. This can add further stress to an already traumatic experience.
You simply see a lawyer who will draft the document for you. Only you are required to attend in person to make the document. You must, however, be of sound mind at the time of signing.
You should choose someone you have confidence in to do the right thing by you. Ask this person before you prepare the EPA.
You can appoint one or two people to manage your financial affairs. Some people ask a family member such as a parent, sibling or spouse. The nominated person must be over the age of 18. We recommend that the person also resides in the same State as you.
An Attorney is under a duty to act diligently in the best interests of the maker of the EPA. The Attorney must keep accurate records and accounts of any dealings and transactions made under the EPA.
If the maker of the EPA loses legal capacity the Attorney must not renounce the power without the consent of the State Administrative Tribunal. If the Attorney becomes bankrupt, they must report the bankruptcy to the State Administrative Tribunal.
We recommend that the Attorney obtains legal advice if they are unsure what is required of them.
The person nominated in the EPA, i.e. the Attorney, has the document in their possession and takes it with them as an authority whenever they need to action something on your behalf, such as withdrawing money, selling property etc. Without physically presenting the document and being able to prove their identity they can do nothing.
An EPA is valid until the maker revokes the EPA or until the death of the maker or an order from the State Administrative Tribunal.
Yes. Sometimes, if you have a temporary period of incapacity, such as a stroke, after recovery you may want to manage your own affairs again. In this case, to cancel an EPA you simply ask for the document back, or write to the person advising that it is cancelled and request the document from them.
You should also formally advise all relevant persons and bodies, i.e. banks and Landgate of a revocation.
Landgate requires registration of a revocation in writing.
If you would like further advice on Enduring Power of Attorney, please don’t hesitate to contact us on 9375 3411 to make an appointment.