Understanding the Role of the Attorney

By Helen Tyree, Director, and Ella Buchanan, Law Clerk, McWilliam Tyree Lawyers

Along with a valid Will, completing Enduring Powers of Attorney (“EPOA”) is an important part of planning for the future.

An EPOA is a document that specifies who will make decisions concerning your care and welfare if you lose the mental capacity to make them yourself, and who will make decision concerning your property when required.

An EPOA is an important document that allows you to plan and feel secure that appropriate decisions will be made for you if you are not able to do so. It also is not difficult to set up and may save a lot of time and cost for you and your family in the long run.

What is an EPOA?

There are two forms of EPOAs, one for ‘personal care and welfare’, and another for property. You can give that person the authority to make decisions either generally, or in relation to specific matters.

In the case of care and welfare, an EPOA only comes into effect if you become ‘mentally incapable’. Unless you have provided otherwise, an attorney for your personal care and welfare can make decisions about everything to do with your care and welfare. You can restrict this to just certain decisions, such as where you will live or how you will be cared for. No matter what, your attorney is not authorised to make any decisions about your marriage or divorce, adoption of your children, consent to surgery or treatment of the brain, or refuse to consent to standard medical treatment that could save your life, for example CPR measures.

In the case of a property EPOA you can choose whether the EPOA is effective both before and after you lose capacity, or only after. An EPOA for property allows your nominated attorney to take care of your finances and property, including paying your bills.

A health practitioner must have certified your lack of capacity. The law assumes that all persons can make, understand, and communicate decisions unless it is expressly proven otherwise.

The person you choose to care for your matters under the EPOA is called your attorney.

Preparing your EPA

You can choose to set up either one, or both kinds of EPOAs. Many people select a family member or close friend as their attorney, however the choice of your preferred attorney(s) is yours. You can select the same person to be both your property and personal care and welfare attorney. It is suggested that, if you select two different attorneys, that they know each other and work well together, as they will be required to collaborate if the EPOA comes into effect.

You must obtain independent legal advice before creating an EPOA, and it must be witnessed by your lawyer or JP. We can help you set this up and provide you with all the information you and your elected attorney(s) may need. If you have any questions or would like to prepare an EPOA and/or your will, please reach out to us at McWilliam Tyree Lawyers.