When a loved one can no longer make decisions for themselves, it is important that the person they have appointed in their Enduring Powers of Attorney (“EPOAs”) can step in quickly to act on their behalf. Before this can happen, the document(s) must be formally activated.

Key Terms used in EPOAs

• Donor: The person who makes the EPOAs and, in doing so, gives or “donates” the power for another person to act on their behalf.
• Attorney: The person (or people) appointed in the EPOA to act on the Donor’s behalf, also called the Donee.
• Activation: The formal process required before the Attorney can rely on the document and begin acting under its authority. 

Activating a Personal Care and Welfare EPOA

A Personal Care and Welfare EPOA can only be used by an Attorney if a doctor or medical specialist certifies that the Donor is mentally incapable.

A medical practitioner must provide a certificate confirming that the Donor is mentally incapable of making or understanding decisions about their own care and welfare, foreseeing the consequences of those decisions, or communicating their wishes.

Activating a Property EPOA

Property EPOAs may be drafted to take effect immediately, allowing the Attorney to assist with financial and property matters while the Donor still has mental capacity (for example, paying bills or managing accounts on their behalf). While the Donor retains capacity, the Attorney must act at the donor’s direction and provide information to them.

If the Donor later becomes mentally incapable of managing their property or financial affairs, the EPOA continues to operate without further activation. However, a registered medical practitioner must certify that the Donor lacks the relevant mental capacity. Once capacity is lost, the Attorney must act in the donor’s best interests in accordance with the statutory duties, rather than at the donor’s direction.

The Process: Step by step

1. Contact the law firm that holds the original EPOAs. They will review the documents, and advise:
2. The date the document(s) were signed; and
3. Whether the Donor’s capacity must be assessed by a specified type of medical practitioner, such as a geriatrician or neurologist. 
4. Book the medical assessment with the chosen medical practitioner. The doctor must meet with the Donor alone. If it is determined that the Donor lacks capacity, the medical practitioner will complete and provide a Certificate of Mental Incapacity.
5. Provide the certificate to the lawyer. The law firm that holds the original EPOAs will record activation and provide certified copies of the document(s) to the Attorney.
6. Complete and sign a certificate confirming that the EPOA has not been revoked, and that the Attorney’s appointment has not been suspended.
7. Notify key parties by giving copies of the activated EPOAs.
8. For Personal Care and Welfare, this might include the Donor’s GP, specialists, and care providers and / or the hospital.
9. For Property, this might include banks and financial institutions, utilities providers, and, if a property transaction is underway, the law firm or conveyancer handling that transaction.

PPPR Orders – What happens if there is no EPOA

If there is no EPOA, the Family Court can appoint a Welfare Guardian and / or Property Manager under the Protection of Personal and Property Rights Act 1988 (sometimes referred to as the “PPPR Act”).

If a loved one is showing signs of memory loss or confusion and there are no EPOAs in place, you may need to apply for Family Court orders under the PPPR Act.