Enduring Powers of Attorney
An Enduring Power of Attorney (“EPA”) is an important document that appoints someone to make decisions on your behalf or to sign documents for you. There are two types of EPAs: those for Property and those for Personal Care and Welfare. Property means everything you own (including bank accounts, investments and so on) and Personal Care and Welfare relates to matters to do with you once you have lost capacity (such as decisions related to where you are to live and whether you are being properly cared for etc.).
When does the EPA take effect?
Personal Care and Welfare
An EPA for Personal Care and Welfare only comes into effect if you (the donor) become mentally incapable. Your attorney can only make important decisions if a doctor has signed a certificate to say you are mentally incapable.
Property
In regard to property, you have a choice: you can decide that your attorney can only act if you are mentally incapable, in which case the attorney would need to obtain a medical certificate before acting. Alternatively, you can specify that your EPA takes effect as soon as you sign it, which avoids the need for a medical certificate. It may be useful to have an attorney who is able to act if you are overseas or temporarily unavailable to deal with your finances.
Appointing an Attorney
You should carefully consider who you want to appoint as your attorney as this is the person who will be responsible for making decisions on your behalf. In most situations this will be once you have lost capacity so you will be unable to monitor what they are doing. You can appoint the same person to act as your attorney for Property and Personal Care and Welfare or you can appoint different people. Each person you appoint needs to be someone you can trust. You should also consider family dynamics and who is best placed to look after you and your affairs.
When you appoint your attorney, you need to be clear about what you want from them. You should discuss the appointment with them and make sure they are aware of all relevant matters. Regarding your property, you should make sure your attorney knows what property you own, where you keep relevant documents and what your wishes would be in relevant circumstances e.g., you may want them to buy birthday presents for specific people, offer support to dependents, or make regular donations to charity etc. They won’t be able to do any of these things unless you specify that they can in your EPA.
There are certain things your attorney is not able to do in relation to your personal care and welfare. For example, they are not able to refuse medical treatment intended to save your life. If you want to give directions on not extending your life when, for example, your brain function is at an end (in the opinion of medical professionals), you will need to put in place an Advance Directive (also known as a “Living Will”).
EPA – things to consider
- Who would you like to name as your Attorney? For Property you can name more than one person to act as your Attorney at the same time. For Personal Care and Welfare, you can only name one person to act at a time.
- Do you want to name a successor attorney/s (in case the first named attorney/s are unable to continue in that role)?
- Is your Property EPA to come into effect immediately on being signed or only if you become mentally incapable? For Personal Care and Welfare your EPA can only come into effect when you are mentally incapable.
- If you have named more than one attorney, are they to act jointly (i.e., they must make decisions together unanimously) or severally (either can decide) or by majority vote (if there are three or more attorneys)?
- Should the EPA apply to all your property, only to some of your property or to do specific things?
- Should your attorney be required to consult with anyone? If so, what should they be required to consult about? An example might be where you have a longstanding and trustful relationship with a financial advisor or accountant and you would want your attorney to consult them on say, the selling of certain shares you own. Be aware that the requirement to consult does not necessarily mean everyone has to agree – your attorney would have the final say on the matter at hand.
- Should your attorney be required to provide information to anyone? If so, what information should they be required to provide and to whom should they be required to provide it? An example might be where you want certain wider family members or a close friend to be given information on your care arrangements.
- Requiring your attorney to consult with, or provide information to, other people can be an important check on an attorney’s power over your property and care. However, imposing too many checks on your attorney’s power can hamper their ability to make quick and quality decisions for your benefit – it’s important to get that balance right.
- Should your attorney be allowed to benefit themselves in acting as your attorney for Property e.g., should they be allowed to charge for their time if they are a professional attorney such as an accountant or lawyer?
- Should your attorney be allowed to apply to the Family Court to sign a new will for you?
- Are there any other terms and conditions you would like to impose? For example, if you have end-of-life care instructions, you may wish to require that your attorney have regard to those instructions in making decisions about your care.
When does an EPA cease to apply?
You can cancel your EPA at any time, provided you are still mentally competent to do so. This must be done by giving notice of cancellation in writing to the named attorney/s. It is also a good idea to inform your lawyer that you have done so.
You can also suspend your EPA by notice to your attorney/s at any time. Until an attorney is notified of cancellation or suspension of the appointment the attorney can continue acting on your behalf.
The Family Court can cancel an EPA if it believes the attorney is not doing the right thing or will not do so in the future. Alternatively, the Court could appoint a property manager or welfare guardian whose authority takes priority over the attorney named in the EPA. However, the court can only do this if an application is made by a relative or some other authorised person.
An EPA will also cease to apply once you have died. After your death, authority to manage your estate passes to the executor named in your Will. If you do not have a Will the High Court may appoint an administrator to administer your estate.
Putting EPAs in Place
You will need to see a lawyer to put in place a valid EPA. It is a legal requirement that you receive independent advice before signing an EPA and that your signature is witnessed by an authorised person. You attorney/s will also need to sign the EPA and have their signature witnessed; your attorney’s signature can be witnessed by any independent person over the age of eighteen.
We are happy to assist you in preparing EPAs or discussing your wishes for EPAs in anticipation of putting them in place. Please feel free to contact Sarah Mair, Solicitor, or Jessica Temm, Partner, for assistance.
Incorporated Societies Reminder
A reminder that Incorporated Societies should start the process of re-registering themselves this year.
An Incorporated Society that has not re-registered itself before the final deadline of 5 April 2026 will cease to exist.
If you do not re-register your Incorporated Society before the deadline there may be adverse implications for members, such as personal liability being imposed for the Society’s debts or leases.
As the process for re-registering may involve, among other things, organising and holding an AGM for members to vote on various changes to key documentation, it is important to get things moving now.
The main changes your Incorporated Society needs to make are:
- Ensure there is a Constitution in place and that it complies with the new rules
- Adding a suitable dispute resolution clause to the Constitution
- Establish a committee responsible for dealing with the operation of the Society
- Put in place certain policies and procedures, including how the Society can enter into contracts and how the Society will deal with its financial affairs.
While you are dealing with these changes, you should check in with your Society’s accountant to ensure that all financial matters are up to date, as there are new financial reporting standards coming into effect as well.
We are happy to assist you with the re-registration process. We could also review your structure at the same time and provide advice on whether a different structure is better suited to your circumstances (such as a Charitable Trust).
