1. The benefits of an Enduring Power of Attorney (“EPA”).
2. Why is an EPA so important.
3 Who should make an EPA.
4. What’s the difference between an EPA and a Will.
5. Thinking about your EPA.
6. Choosing your Property Attorney.
7. Other Matters to Consider
1. THE BENEFITS OF AN ENDURING POWER OF ATTORNEY (EPA)
An Enduring Power of Attorney allows you to appoint somebody you trust to take care of your affairs the way you would want them taken care of, should you ever need assistance. This can be an individual, people or a trustee company. By making your Enduring Power of Attorney in advance, you are able to make important decisions and choices about your affairs while you are still in control of your life.
There are two types of Enduring Power of Attorney – one for property (i.e. your assets) and another for personal care and welfare. Your attorney can manage your financial affairs through a property Enduring Power of Attorney. In the case of personal care and welfare, only private individuals can be appointed as attorneys, and we suggest that person be a member of your immediate family or failing that, someone you trust implicitly.
A personal care and welfare Enduring Power of Attorney can only come into effect if you become mentally incapable. We can prepare both forms of Enduring Powers of Attorney for you.
An Enduring Power of Attorney enables you to pass on authority to another who will act on your behalf. However, there are a number of important features to ensure that you are comfortable with the amount of control you give them.
Through a property Enduring Power of Attorney:
• You choose when it takes effect. A property Enduring Power of Attorney can come into effect:
1. immediately, if you want someone to manage your affairs now; or
2. at a future date – if you are going overseas for example; or
3. if, and only if, you become incapacitated.
• You retain total control as to how it should be used and what for. You decide whether it covers all your property or specific assets.
• You can still remain in control of your affairs after it has been made if you want to. No-one can take over from you unless you expressly direct them to.
• You can cancel or change your Enduring Power of Attorney at any time, provided you are capable of understanding what you are doing.
An Enduring Power of Attorney is part of planning your own life and caring for your family and those close to you.
The difference between an Enduring Power of Attorney and an ordinary Power of Attorney is that an ordinary Power of Attorney does not give a person or organisation the right to act on your behalf should you become incapacitated.
If, because of accident or illness, you were to become unable to look after your own affairs, without an Enduring Power of Attorney in place, your family and those close to you would be left without the authority to make decisions on your behalf, even if one of them had an ordinary Power of Attorney! To get that authority, a lengthy and expensive application to appoint a manager to make decisions on financial and personal matters would need to be made to the Family Court under the Protection of Personal and Property Rights Act. The cost of such an application is in the range of $4,000 to $5,000, depending on the individual circumstances. The time delay can be up to six months depending on how complicated and urgent the application is. By contrast, an Enduring Power of Attorney is inexpensive to make and there are no delays.
In relation to property – unable to understand and sign documents or make decisions about property whether it be through an accident, illness, old age or mental incapability.
In relation to personal care and welfare – as above but also includes the inability to understand such decisions.
The person or organisation which you have appointed to act on your behalf.
The following points examine how an Enduring Power of Attorney works. It also highlights how our wealth of experience in this area will help you prepare an Enduring Power of Attorney that expresses your wishes. We also introduce other services that you may wish to consider.
2. WHY IS AN EPA SO IMPORTANT?
Perhaps the best way to view an Enduring Power of Attorney is as a form of insurance that life would carry on if anything were to happen to you.
Many people believe that their will would take effect if they were incapacitated, or that their spouse, civil union partner or a close relative could automatically step in to take charge of their affairs. Neither of these assumptions is correct.
If you were to be incapacitated, and there was no Enduring Power of Attorney, the only way any decisions could be made about property or personal concerns would be by applying to the Family Court under the Protection of Personal and Property Rights Act.
In addition to the cost there is no guarantee that the Court decision will be what you would have wanted, or that the person or organisation appointed to manage your property would have been your choice. Only a properly executed Enduring Power of Attorney lets you make those decisions.
3. WHO SHOULD MAKE AN EPA?
Any person over 18 or anyone who has married or is in a civil union or in a de facto relationship, no matter what their age should give serious consideration to having an Enduring Power of Attorney. In fact, we believe an Enduring Power of Attorney is as important as your will, and like your will, must be completed before it is needed.
4. WHAT’S THE DIFFERENCE BETWEEN AN EPA AND A WILL?
Both your will and an Enduring Power of Attorney enable you to state, often years in advance, how you would like your affairs managed. The difference is that a will takes effect upon your death while an Enduring Power of Attorney operates while you are alive.
5. THINKING ABOUT YOUR EPA
Making an Enduring Power of Attorney involves thinking carefully about how your affairs should be taken care of while you are still alive. The decisions you make in your Enduring Power of Attorney will affect not only you but those close to you. Therefore we suggest you discuss matters with those likely to be affected.
It is also important to cover all eventualities. You should tell your prospective attorney exactly what your Enduring Power of Attorney covers and what you want to happen so that all the information is included. You should also seek appropriate professional advice as to the effects of what you are planning. Once again we can assist you.
6. CHOOSING YOUR PROPERTY ATTORNEY
Once you have decided how your property affairs should be managed, the next important decision is who will you appoint to manage them.
An attorney’s level of responsibility should not be underestimated. Your attorney could be responsible for your affairs for a long time, so it is important they both understand and care for you and will always act in your best interests.
7. OTHER MATTERS TO CONSIDER
We can also assist you with a number of services which are likely to complement the arrangements being made in your Enduring Power of Attorney.
Making a Will
Your will is a unique record of your wishes, a record which will save those you care about a great deal of heartache and possibly financial strain. No matter what your age or financial situation, a plain English will helps you provide for the needs of the people who depend on you. It lets you name the people you want to receive your savings, property and other personal belongings in the event of your death.
A trust is a very special and independent way of caring for your family and dependents. It involves putting all or part of your estate aside for a specified period of time. A trust can be drawn up to take effect while you are still alive or at your death.
We can work with you to help establish the terms of the Deed of Trust including such details as which part of your estate is allocated to the trust, how it is to be managed and who will be included as beneficiarie