JB Morrison’s Trust and Estate lawyers, Andrew Stewart and Sam Thomson, explore the what, why, when, who and how of an Enduring Power of Attorney.

What is an Enduring Power of Attorney?

Enduring Powers of Attorney are a document in which you appoint someone to manage your affairs or make decisions on your behalf when you are unable to do so yourself.

There are two kinds of an enduring power of attorney. One is concerning your personal care and welfare, and the other is with your property.

Your enduring power of attorney for personal care and welfare allows your attorney to make decisions on your behalf for things such as your health, accommodation or whether you should be moved into an assisted care facility. This enduring power of attorney only comes into effect once you have lost mental capacity and a medical practitioner must first determine this.

Your property attorney can make decisions on your behalf about your money and assets, including doing things like paying bills or selling your house. You can choose to have your enduring power of attorney for property come into effect immediately (i.e. while you are still mentally capable) or only upon losing mental capacity.

Why do I need an Enduring Power of Attorney?

If you were to become mentally incapable and unable to manage your affairs, without having enduring powers of attorney in place, a family member would need to apply to the Family Court for an Order to become your property manager or welfare guardian to act on your behalf. This is a time-consuming process and is far more expensive than the cost of making enduring powers of attorney. The Orders are also only effective for three years at which point they need to be reviewed by the Court.

When should I get an Enduring Power of Attorney?

A lot of adults, especially younger ones, often think they are invincible and that nothing bad will ever happen to them. However, an accident or illness which results in you losing your ability to look after yourself or manage your affairs could be waiting for you just around the corner. That is why it is a good idea to set up enduring powers of attorney while you are healthy and able so that you and your family can have peace of mind that there are measures in place to manage your care and property affairs should you suffer an unexpected accident or illness.

Who can be my attorney?

Your attorney must be a person who is at least 20 years of age, not bankrupt or mentally incapable themselves.
As you are giving your attorney control over your life and living circumstances, your attorney should be someone that you trust to be able to manage your affairs and respect your wishes. Often these are a family member such as a spouse, a parent or an adult child of yours.
You may only appoint one attorney at a time for your care and welfare. However, you may have more than one attorney for your property affairs. You can also choose to appoint the same attorney for both enduring powers of attorney.
You can also name people in your enduring powers of attorney who your attorney must consult with when making decisions, or name people who must be provided with information on any decisions your attorney has made on your behalf.

How do I get enduring powers of attorney?

Our team is more than happy to assist you in preparing and providing advice on your enduring powers of attorney. If you have any questions or would like to discuss these matters further, please feel free to contact Andrew Stewart by email Andrew.stewart@morrison kent.com or call (04) 495 8921 or Samuel Thomson by email samuel.thomson@morrisonkent.com or call (04) 495-8931.