It often starts with small things. Mum forgets to pay the power bill, again. Dad seems confused about his medications, or you notice the fridge is nearly empty when you pop in for a visit. For many families in our community, there comes a point where it becomes clear that a parent is struggling, and that they may need help to look after themselves.
If your parent set up Enduring Powers of Attorney (EPA) while they were well, you may be named as their attorney, the person legally authorised to step in and help. But here’s something many people don’t realise: being named in an EPA doesn’t automatically mean you can start making decisions on your loved one’s behalf. There are important steps you need to follow first.
An EPA is a legal document that a person (called the “donor”) signs while they have mental capacity, giving a trusted person the authority to act for them if they can no longer manage on their own. There are two types: one covers property and finances, and the other covers personal care and welfare, which includes things like health decisions and living arrangements.
This is where many families get caught out. For personal care and welfare decisions, an attorney generally cannot act on any significant matter (such as arranging rest home care or making medical decisions) until a doctor or health practitioner has formally assessed your parent and issued a certificate of mental incapacity. This is what lawyers mean when they talk about “activating” an EPA.
For property and finances, the rules depend on how the EPA was originally set up. Some property EPAs allow the attorney to act straight away (under the donor’s direction while they still have capacity), while others only kick in once a doctor has confirmed the person has lost capacity.
When assessing mental capacity, the doctor will look at whether your parent can understand decisions that need to be made, foresee the consequences of those decisions, and communicate their wishes. If the doctor concludes your parent can no longer do one or more of these things, they will issue a certificate confirming mental incapacity. This certificate, and a certified copy of the enduring power of attorney, is then presented to whoever you need to deal with on your parent’s behalf: whether that’s a rest home, a bank, or Work and Income.
The certificate itself has strict legal requirements: it must contain specific information to be valid. If anything is missing, it may not be accepted, and you could find yourself in a difficult position at exactly the moment you need things to run smoothly. The lawyer that holds the original enduring power of attorney can help you to review the certificate, liaise with the doctor if anything needs correcting, and provide you with certified copies of the EPA so you’re ready to act.
If you’re watching a parent struggle and you know there’s an EPA in place, it might be time to pay the doctor a visit.
This article is general in nature and is not a substitute for legal advice. If you have questions about enduring powers of attorney, please contact your lawyer.
How can we help?
If you or a family member would like to take this important step towards protecting your future self and providing invaluable peace of mind, WRMK Lawyers’ experienced team of local life planning lawyers are happy to assist.
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