Enduring Powers of Attorney (EPOA / EPA) are essential legal documents that are often overlooked and undervalued. On receiving a diagnosis of dementia | mate wareware, it is critical that the person appoints EPA’s as a matter of urgency to avoid losing the capacity to be able to do so.

What is an EPA?
They are legal documents that allow you to nominate an individual or individuals (in relation to property only) to look after your money, property, your care and other needs if you become “mentally incapable”. The person who gives an EPA is
referred to as the “Donor”. The person(s) nominated by the Donor to manage their affairs is known as the “Attorney(s)”. Any attorney appointed must be over the age of 20 and have mental capacity.

Critically, you must arrange an EPA before you become mentally incapable. Contrary to common belief, your spouse does not automatically have the ability to deal with your affairs.

There are two types of EPAs. An EPA for property gives the attorney the right to manage your financial affairs and deal with your property, money, investments, and bills.

An EPA for personal care and welfare allows for your attorney to make decisions in regards of your health and welfare. This covers decisions such as where you are to live or who can care for you, consent for medical procedures as well as to promote and protect your best interest in general.

In both cases you can authorise an Attorney to act in respect of all of your affairs, or only some of them. Granting an EPA gives considerable power over your property affairs or personal care and welfare to your nominated Attorney, therefore you need to trust your Attorney implicitly. Notwithstanding this, your Attorney’s paramount obligation under the Protection of Personal and Property Rights Act 1988 (“PPPR Act”) is to make decisions protecting your best interests.

With a dementia diagnosis, the need for EPA is a question of “when” rather than “if.” Having EPA’s in place will allow a smooth process for your family during a time of stress and uncertainty. They can access money to pay for your everyday needs and care, provide consent for medical procedures, and make the decision to place you into extra residential care. Without EPAs in place, there will be substancial time delays and the expense in applying to the Family Courts in order to be able to make these decisions.

What if someone has lost mental capacity and they do not have EPA in place?

An application to the Family Court will need to be made. The person who lacks capacity will be referred to as the “Subject Person” throughout Court proceedings. These applications are filed under the PPPR Act and can be filed urgently in certain circumstances, however, generally take several months to be granted and can be an expensive especially where the application is contested.

Doctors can make decisions on your behalf in medical emergencies. In such a situation, doctors will, generally, consult with family. However, the family’s decision is not binding on the doctor’s decision making.

Welfare Guardian and Property Manager

A “welfare guardian” is a Court appointed decision maker for all welfare related decisions, such as medical decisions and which residential care facility the Subject Person should live at. The “Property Manager” is the Court appointed decision maker responsible for managing the Subject person’s assets and liabilities and will be in charge of paying all of the bills associated with the Subject Person’s living expenditure. Generally, it makes logistical and financial sense to file both applications simultaneously.

Application process

The threshold for applying to be appointed welfare guardian vs property manager differs. The granting of a Welfare Guardian Order requires the Subject Person to be “wholly lacking” capacity. Whilst a Property Manager Order allows the subject person to retain “partial” capacity. It is important to have medical advice to ascertain what level of capacity the subject person has retained.

After the application is filed, the Court will appoint a “Lawyer for Subject Person” (“L4SP”). L4SP will meet with the subject person, obtain their views on relevant matters where appropriate and report to the Court. The Judge will usually decide an application without the parties appearing in Court, however, if affected parties, such as family members, do not agree with the orders as sought, then they may oppose the application and a hearing may be required.

Other restrictions
Property managers and welfare guardians are not entitled to be paid for acting as such, however, all expenses that are reasonably incurred in exercising the powers are payable out of the property of the person, unless a Court orders otherwise.

Property managers and welfare guardians are not usually liable for their actions or decisions. However, there are two exceptions where they may be held liable: if it is shown that they acted in bad faith and without reasonable care or if they entered into a contract or arrangement or incurred a liability with a person without disclosing, they were acting on your behalf.

When an order appointing a property manager or a welfare guardian is made, the Court will also set a date by which time they must apply for a review of the order, this is generally in three years’ time. If you do not apply for a review, the orders will expire.