Most people know they should have a will. Far fewer have the documents that matter while they are still alive.

An enduring power of attorney (EPA) lets someone you trust step in and make decisions for you if you cannot make them yourself, whether through illness, injury or a gradual loss of capacity. A will works when you are gone. An EPA works when you are still here but unable to act.

Without one, your family cannot simply take over. Banks, doctors and other organisations are bound by law and privacy rules, no matter how well your family knows your wishes. Here is what to understand, and why setting these up early matters more than most people realise.

There are two kinds, and you need both

There are two separate EPAs, and they do different jobs.

Property. Covers your money and assets: bank accounts, bills, property, investments. This one can be set up to take effect straight away, or only if you lose capacity, whichever suits you.

Personal care and welfare. Covers decisions about your health, living arrangements and day-to-day care. This one only comes into effect if you are assessed as mentally incapable.

People often put one in place and forget the other. Both matter, and they work as a pair.

They only work if you set them up in time

This is the point people miss. An EPA can only be made while you still have the capacity to understand what you are signing. If you lose capacity first, it is too late, and your family is left with the slower, more expensive court process instead. If you do one thing off this list, make it this.

Without one, your family goes to court

If you lose capacity without EPAs in place, your loved ones may need to apply to the Family Court to be appointed to act for you. That takes time and money, usually at a point when the family is already under strain. The court, not you, decides who is appointed, and it may not be the person you would have chosen.

You choose who steps in

Appointing an attorney is a significant decision. The person should be someone you trust to act in your best interests and make careful decisions on your behalf. For some that is a partner, for others an adult child or a trusted friend. It is also worth naming a replacement attorney, so there is no gap if your first choice is unable to act when the time comes.

Not just for later in life

It is easy to file this under "something to deal with when I'm older." But loss of capacity does not only happen with age, and when it happens suddenly there is no chance to put the paperwork in place afterwards. EPAs are not about expecting the worst. They are about making things easier for the people around you if the unexpected happens.

What setting one up looks like

The documents must be in writing on the prescribed forms, signed, and properly witnessed and certified. The law requires that you get independent advice about what the EPA means before you sign, which is part of what protects you.

If you do not have EPAs in place, or yours are more than a few years old, contact us. We will talk you through the options and get the right documents sorted.

Frequently asked questions

What is an enduring power of attorney? It is a legal document that lets someone you trust make decisions for you if you become unable to make them yourself. "Enduring" means it continues to apply even after you lose capacity, which an ordinary power of attorney does not.

What are the two types? One for property (money and assets) and one for personal care and welfare (health and living arrangements). Most people should have both.

When does an EPA take effect? A property EPA can take effect immediately or only on loss of capacity, as you choose. A personal care and welfare EPA takes effect only once you are assessed as mentally incapable.

Can I set one up online myself, or do I need a lawyer? The law requires independent legal advice about the effects of an EPA before you sign, and specific witnessing and certification. In practice this is why EPAs are set up with a lawyer rather than filled in alone.

Who can I appoint, and can I appoint more than one person? You can appoint someone you trust, and you can name a replacement in case your first choice cannot act. For property you can appoint more than one attorney to act together or separately. For personal care and welfare only one attorney can act at a time.

What happens if I lose capacity without an EPA? Your family may need to apply to the Family Court to be appointed to manage your affairs. It is slower and more expensive than putting EPAs in place beforehand, and the court decides who is appointed.

Can I change or cancel my EPA later? Yes, while you still have capacity you can change or revoke an EPA.

Does an EPA still apply after I die? No. An EPA ends on death. From that point your will takes over and your executor deals with your estate, which is why the two documents need to work together.

This article is general information, not legal advice. Everyone's situation is different, so talk to us about yours.

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