Creating an Enduring Power of Attorney

 

 

What is an Enduring Power of Attorney   (EPOA)

An EPOA is a document executed by a person (known as the Donor) , appointing Attorney(s) to act on their behalf over their affairs, in the event that the person loses capacity. 

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How to make an Enduring Power of Attorney with Madden Law
1. Make an appointment to give instructions.

The person making an EPOA must have capacity to instruct a solicitor to prepare the document. If the person lacks capacity, a solicitor cannot allow a person to execute an EPOA. The test to decide whether a person has capacity, is a legal test but it is supported by medical evidence. It is not sufficient for a doctor to confirm that the person has capacity to create the legal document. To have capacity , the person must demonstrate to the solicitor that they understand the effect of creating an EPOA,  they understand when the document will take effect and that they can revoke the EPOA, prior to registration.  

1. The person will have to instruct the solicitor as follows:
  1. Who will be appointed as attorney
  2. If more that one, if they should act jointly or jointly and separately
  3. Who will be the notice parties – there must be two who must be closely related to the person.
  4. If there are to be any restrictions imposed on the powers of the Attorney. If no restrictions are imposed, the Attorney will have full power over all of the person’s affairs. 
Service Wills advice
  1. Make an appointment with a Doctor.

A section of the EPOA document requires a doctor to confirm that the person has capacity to create the document. The Powers of Attorneys Act 1996 governs EPAOs and it states that the EPOA can be created and the medical certificate can be signed by the doctor within 30 days. However, it is advisable to have the certificate signed on the same day as the execution of the EPOA. This avoids any future challenge to the capacity of the person at registration.

  1. Signing the EPOA.

The person should attend with their doctor and get the required documents signed. The solicitor will provide this to you. Then, the parties should meet their solicitor. The Attorney must be present with the person and the solicitor for the signing of EPOA. The solicitor will confirm all of the details with the person. The person will then sign the first part of the EPOA which appoints the Attorney. The solicitor will then sign the next part which confirms the person has capacity. 

3.

The Attorney signs the next part to confirm they accept and understand the role. The person then signs the next two parts which are notices, which will be sent to the notice parties, advising them that the EPOA has been created. The solicitor will attend to the service of these documents. The original document will be stored in the office of the solicitor.

If you would like to discuss making an EPOA

Please contact us
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