RESOURCES

Activating Enduring Power of Attorney – FAQ

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, Donor and Attorney? 

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 the donor trusts.

When does an EPOA come into effect? 

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. 

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 and the document specifically states that it is in effect while the donor is mentally capable.

Obtaining a copy of the EPOA 

If the Donor has mental capacity, then we will ask them for instructions regarding whether we can send a copy of the EPOA to anyone, such as their Retirement home or Attorney etc. 

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 the medical professional or Family Court that the Donor cannot make decisions for themselves, then the Attorney can give us instructions to send it to third parties.

Using an EPOA

Once the 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, such as banks or retirement homes 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. 

These institutions may ask for a certified copy which we can provide when necessary.