A Power of Attorney is a document which allows a person (the “Donor”) to designate another person (the “Attorney”) to manage the Donor’s financial and legal affairs. An Enduring Power of Attorney (“EPA”) is a Power of Attorney that is intended to continue to be valid if the Donor becomes mentally incapable of making their own decisions.
An EPA can become effective in one of two ways, as specified by the Donor: (i) the EPA can be effective immediately upon being signed, or (ii) the EPA can come into effect if and when the Donor becomes mentally incapacitated or infirm (or some other specified contingency). In either case, the EPA will survive the Donor’s subsequent mental incapacity or infirmity so as to allow the Attorney to manage the Donor’s affairs when the Donor cannot do so. Thus, the EPA allows the Donor to appoint someone they trust to make decisions on their behalf when they cannot do so.
Under an EPA, the Donor is typically authorized to do anything on behalf of the Donor that the Donor would be able to do on their own, if they had not become mentally incapacitated or infirm. A general EPA provides the Attorney with very broad powers to manage all of the Donor’s property and affairs (subject to certain statutory restrictions). The Donor can specify restrictions in the EPA so as to allow the Attorney to deal only with specifically identified property, or to provide direction as to what the Attorney may or may not do with the Donor’s assets. Unless otherwise stated, the Attorney many only use the Donor’s property for the Donor’s benefit.
At KH/Dunkley Law Group we prepare Enduring Powers of Attorney (and other Powers of Attorney) to ensure that a valid document is in place when our clients need it most. We take the time to discuss the effects of the EPA with our clients so that they have a full understanding of what they are signing, and the benefits and risks of doing so.
For more information, please feel free to contact our office.