EPA - role and responsibilities

Enduring power of attorney (EPA) - role and responsibilities

An enduring power of attorney (EPA) is a legal document that gives an individual the authority to make decisions regarding someone else’s property or personal care if that person (the donor) is unable to do so themselves.

The role and responsibilities of a property or personal care and welfare attorney under an EPA is set out in the Protection of Personal and Property Rights Act 1988.

An attorney’s responsibilities can be difficult and time-consuming, so it’s important to be fully informed on the scope of the role before accepting an appointment.

When an EPA becomes effective

For a personal care and welfare attorney, the EPA authority comes into effect when the donor is deemed mentally incapable of acting for themselves.

For a property EPA, the donor can choose when the authority becomes effective – immediately (even while they are mentally capable) or only after they are deemed mentally incapable. The appointed attorney holds the same level of authority as the donor, but the donor can place restrictions on the attorney’s authority.

Restrictions on a personal care and welfare attorney

Under the Act, a personal care and welfare attorney does not have authority on behalf of the donor to:

  • make any decisions concerning marriage or civil unions or their dissolution
  • make any decisions relating to the adoption of any of the donor’s children
  • refuse the administration of procedures that would save the donor’s life
  • consent to electro-convulsive treatment
  • consent to forms of brain surgery that will change the donor’s behaviour or damage a portion of their brain
  • consent to experimental surgery other than life-saving surgery

Obligations as an attorney

The obligations under the Act require the attorney to consult with the donor if practicable when using the authority.

They may also be required to consult with another attorney or provide relevant information on decisions to other people specified in the EPA.

In the case of a property attorney, a donor can specify for certain people to see the financial records and information showing how the authority has been used. Failure to provide these may incur a fine of up to $1,000.

Above all else, the attorney must act in the donor’s best interests.

When an attorney can act

If the donor is mentally capable, they can revoke an EPA or an attorney’s appointment at any time by written notice.

  • A personal care and welfare attorney can immediately hold authority to deal with minor personal care and welfare matters if it is believed on reasonable grounds that the donor is mentally incapable of doing so.
  • Before dealing with any significant matters, a personal care and welfare attorney must obtain a medical certificate from a doctor whose practice includes assessments of mental capacity. This is to show that the donor is mentally incapable of acting for themselves.
  • When the authority is used, the attorney will need to provide a certified copy of the EPA together with a declaration of non-revocation (which declares that the donor is alive and has not withdrawn the appointment) to any institution or agency the attorney is dealing with.
  • For a property EPA, a donor can appoint two or more attorneys under a joint authority, and both attorneys must agree before performing any action. No joint authority is possible under a personal care and welfare EPA, and the attorney must be an individual.

Resigning from a role

If the donor is mentally capable, an attorney must provide written notice to the donor of their desire to resign from the role. If the donor is mentally incapable, the attorney must lodge notice at the nearest Family Court.