We are often asked to “Activate” an Enduring Power of Attorney (“EPOA”). We do not activate an EPOA. Instead, the EPOA comes into effect, generally once a doctor has decided that the Donor no longer has mental capacity.
What is an EPOA, Attorney and Donor?
An EPOA is a legal document, where a person (the “Donor”) gives another person (the “Attorney”) the power to make decisions on the Donor’s behalf. The Attorney does not need to be a lawyer. Just someone they trust.
When does an EPOA come into effect?
An EPOA for Personal Care and Welfare will only come into effect if a medical professional or the Family Court has determined that the donor is mentally incapable.
An EPOA for Property will also be in effect when a medical professional or the Family Court has determined that the donor is mentally incapable. An EPOA for Property may also come into effect once the EPOA has been signed by all parties, but only if the Donor has decided this is what they wanted when originally signing the document.
Can we get a copy of the EPOA?
If the Donor has mental capacity, they need to instruct us to send a copy of the EPOA to someone before we will provide it to that person.
If the Donor does not give us instructions, then we can only provide an Attorney with a copy of the EPOA once we have a copy of the decision from a medical professional or Family Court that the Donor cannot make decisions for themselves.
Once a medical professional or Family Court has set out the Donor does not have mental capacity, then the Attorney can make decisions on the Donor’s behalf. Many institutions will require a copy or a certified copy of the EPOA before they will accept that the Attorney is acting on the Donor’s behalf.