A concerning issue which has been highlighted in the media recently is the fraudulent use of Enduring Power of Attorney’s or ‘EPA’s’, with a shocking statistic that at least one EPA a week is being revoked by courts or tribunals after being presented with evidence of significant fraud.
An ‘Enduring Power of Attorney’, or ‘EPA’ is a legally binding document which can be used to appoint a trusted person, usually a family member or close friend, to make financial or medical decisions on your behalf should you lose capacity to make those decisions yourself.
Due to unregulated nature of EPA’s, and the relatively unfettered powers given to an attorney pursuant to an EPA, attorney’s have been found to be abusing their appointment and there have been many reports of instances where attorney’s have been clearing out bank accounts, accessing superannuation and even selling property unbeknownst to the owner.
Entering into an Enduring Power of Attorney
There are many options available when entering into an enduring power of attorney, including, but not limited to:
- appointing multiple attorneys and whether those attorneys can make decisions independent of each other or whether they must make decisions jointly;
- if there are to be separate attorney’s for financial/medical decisions;
- whether the appointment is for financial matters only; or
- whether the appointment is for medical matters only
Essentially, if you appoint an attorney to make decisions in respect of personal/health matters, their power does not commence until (if ever) you become incapable of making decisions on your own behalf, i.e. through an illness such as dementia.
In respect of financial matters, you are able to nominate a date or occurrence when the attorney’s power will commence. If you do not nominate a date, their power will begin immediately, however this will not affect your ability to make decisions for yourself if you are still able to do so.
An enduring power of attorney will continue until it is revoked for financial matters, and for health/personal matters, until such time as you are capable of understanding the nature and foreseeing the effects of a decision and of communicating that decision. An enduring power of attorney will also come to an end in a number of circumstances, including if you get married (and your spouse is not already your attorney); you get divorced; if your attorney withdraws; if your attorney becomes incapable or dies, or if you die.
It is important to realise that once your attorney’s power to make decisions begins, they will have full control over those decisions unless you have explicitly limited their powers in the document or you revoke the EPA (provided you have capacity).
With the recent publicity about EPA’s, there has been a push to review guardianship laws and create a regulatory framework to allow for closer supervision and monitoring of EPA’s and to stop the abuse of EPA provisions.
If you currently have an EPA, we strongly recommend that locate your original EPA and ensure it is kept in a safe place (ideally, the original should be held with your solicitor), as the original document is usually required to be sighted before any access will be granted to the attorney.
If you are interested in obtaining an EPA, Affinity Lawyers can discuss all of the available options with you and provide you with the information you need to make an informed decision. We can also retain the original document in our safe custody if required.
Please contact one of our friendly Gold Coast team at Affinity Lawyers today on 5563 8970 to discuss your EPA requirements.
