What is an Enduring Power of Attorney or EPA?
An enduring power of attorney (“EPA”) is a legal document that you can make to enable your chosen individuals to have legal authority to make financial and/or property decisions on your behalf.
Why do you need an EPA?
We advise our clients to consider making an Enduring Power of Attorney to nominate an attorney who can act on behalf of them in respect of financial and property decisions in case they become incapable and unable to do so for themselves.
How do I know who to choose as my Attorney?
It is important that you choose wisely when appointing someone to be your Attorney. You should choose someone who you have the utmost trust in do the right thing by you and/or someone who is financially savvy. The person you choose, must be over the age of 18.
You can also appoint two people to be your attorneys and to act either jointly or jointly and severally. If you appoint them to act jointly then they must always act together by attending banks together, signing off on documents at the same time and agreeing on all financial decisions. If you appoint them jointly and severally then this allows your attorneys to act either jointly or individually. You can also appoint a substitute attorney or attorneys in case your initial attorney can’t act for you if they become incapable or predecease you.
When is my EPA active?
You have two options on when to make your EPA active, you can have it active immediately or in the event when you lose capacity. If you make your EPA active immediately, it doesn’t mean that you can longer deal with your own affairs, it just means that your Attorney can act on behalf of you, with your guidance. For example, if you still have capacity but are physically incapable to get to the bank, then making the EPA active immediately will allow your attorney to deal with your affairs at ease. If you choose to make it active upon loss of capacity, then your attorney must make an application to the State Administrative Tribunal for an order declaring you have lost capacity and only then will your EPA become effective.
Conditions and restrictions
You have the option to impose conditions and restrictions on your attorney’s power. This can include anything from your attorney not being allowed to transfer or sell your shares to ensuring your attorney can continue gifting money to friends, families and charities if your financial circumstances allow it. We don’t usually recommend our clients impose restrictions on their attorneys as it can become difficult and complicated down the track as your circumstances change.
If you own real estate, your EPA must be registered with Landgate within 3 months of it being signed for your attorney to be able to deal with your real estate for you, such as selling or transferring property. If you do not register your EPA and you have any real estate, your attorneys won’t be able to sign any transaction on your behalf until the EPA is registered which can become difficult if you have lost capacity.
What to do once my EPA is made?
Once your EPA has been completely signed, you should give the document to your nominated attorney as well as any relevant individuals such as your accountant. Your attorney must be able to present the physical document to able to transact on your behalf, whether it is to withdraw money to pay your bills or to sell property. If your attorney is unable to present the physical EPA then they won’t be able to complete their duties and don’t forget to lodge your EPA!
Do’s & don’ts on what to do with your EPA
- Inform the person you have appointed as your attorney;
- Tell your Attorney where you keep your EPA and how they can access it;
- Lodge your EPA with Landgate otherwise your Attorney will not be able to transact property on your behalf;
- Review your EPA every 3-5 years or when major life changes happen. As long as you still have capacity, you are able to amend or revoke your EPA.
- Mark or make handwritten amendments to your document; and
- Lodge your EPA in safe storage at the bank as your attorney will need the EPA in their possession to get it from the bank.
It’s extremely important to have a valid EPA in place to save yourself and your family from any potential troubles in dealing with your finances and property in the future. We advise all our clients to make an EPA as part of their estate planning.
Consult one of our experienced team to discuss all things related to your EPA on 9375 3411.
About the Author: Ida obtained her Bachelor of Laws at Murdoch University in 2020, after graduating with a Bachelor of Criminology. She is currently a law graduate for the Estates team and is due for admission in 2022.