Keeping you protected – Enduring Powers of Attorney
A Power of Attorney is a legal arrangement where you (called the donor) appoint another person (called an attorney) to temporarily act for you, for example if you go overseas.
An Enduring Power of Attorney (EPA) continues to operate, or only comes into effect, should you become mentally incapable.
The basis for EPAs is set out in Part 9 of the Protection of Personal and Property Rights Act 1988. The Act was amended in 2007 to provide better protection for people in the way EPAs are set up and in the way an attorney can act under them.
There are two types of EPAs:
- A Personal Care and Welfare EPA appoints one person as your attorney to make decisions about your personal care and welfare on your behalf. These decisions might include agreement to medical treatment or admission to residential care or choice of a residential home. Although you can only appoint one person to be your Personal Care and Welfare Attorney, you can appoint one or more successor attorneys to act if the authority of a previous attorney lapses
- A Property EPA appoints an attorney to manage and make decisions about your property. This might include how to invest your assets, what to spend your money on, and decisions about your house. If you wish, you can give your attorney authority to manage your property affairs while you still have capacity and to continue to act if you become mentally incapable.
Most people give both types of EPA. The same individual can be both your Personal Care and Welfare Attorney and your Property Attorney. However, a trustee corporation cannot be your Personal Care and Welfare Attorney.
Key changes to the Act include:
- a clearer definition of mental incapacity in relation to personal care and welfare enduring powers of attorney
- strengthened witnessing requirements when setting up an enduring power of attorney
- new duties on attorneys to consult with donors and act in donors’ interests as well as a restricted ability for attorneys to benefit themselves or people other than the donor.
Most of the changes apply to all enduring powers of attorney made before or after 26 September 2008, but some will not apply to enduring powers of attorney that are in effect on that date.
Frequently Asked Questions (FAQs) - information to assist people who have given an Enduring Power of Attorney (EPA), who are an attorney for someone under an EPA, or who are considering giving an EPA, so they may better understand the changes that have been made to the arrangements for EPAs from 26 September 2008.
