Lets talk law: Enduring Powers of Attorney

Phillippa Childs from Treadwell Gordon. Photo / File

Putting your affairs in order – it's not the most upbeat of topics, but it's an important one nonetheless.

When people think about putting their affairs in order, they usually think about having a will. An often overlooked aspect of managing your personal affairs is enduring powers of attorney.

What happens if you can no longer make decisions for yourself? Who is going to make these decisions for you? Who is going to ensure that you get the care you need, and your property is looked after?

An enduring power of attorney gives the person of your choosing the ability to make decisions on your behalf when you are no longer able to effectively make them for yourself, and is known as your attorney.

There are two kinds of enduring power of attorney: property and personal care and welfare. Your attorney for property is responsible for looking after your assets, such as your home and finances.

Your attorney for personal care and welfare is responsible for looking after you as a person, for example ensuring you get appropriate medical care.

Enduring powers of attorney for personal care and welfare will only come into full effect once you lose mental capacity.

A person is deemed to have lost capacity once a doctor, having completed an assessment of the person, certifies that they no longer have capacity. Broadly, someone will have lost capacity when they no longer have the ability to appreciate the consequences of or effectively communicate their decisions.

Sometimes, your enduring power of attorney for personal care and welfare can make smaller decisions about your care and welfare when they have reasonable grounds for believing you no longer have capacity. For any big decisions, they need to have that doctors certificate in place.

Enduring powers of attorney for property can come into effect either immediately (so while you have capacity) or upon loss of capacity. The benefit to having your enduring power of attorney for property come into effect immediately is that it allows your attorney to manage your property affairs when, for example, you are overseas, or you are hospitalised but still retain capacity.

There are certain restrictions on what your enduring power of attorney can do, for example, they can't enter you into a marriage, adopt any children on your behalf, or deny you life-saving medical care. You can further restrict the powers of your attorney if necessary, such as giving your attorney for property the ability to look after your rental properties, but not the rest of your property.

If you don't have enduring powers of attorney in place, and you lose capacity, it can be difficult for your family to manage your affairs. Even simple things like paying bills can be difficult without enduring powers of attorney in place. They may be required to get an order from the Court allowing them make decisions on your behalf, which can be a time consuming and expensive process.

Lastly, enduring powers of attorney can only be put in place by a lawyer, legal executive, or employees of organisations such as the Public Trust. We encourage anyone with questions about enduring powers of attorney to seek professional advice.