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Jenna Bever

Associate

What is an Enduring Power of Attorney?

Have you made a Will? An Enduring Power of Attorney (EPA) or Personal Directive (PD)? If the answer is no, you’re not alone. These three legal documents make up your Estate Plan. It is important to have an Estate Plan to ensure that your loved ones are taken care of and that the friends, family and charitable organizations most important to you are considered.

Last month I began my Introduction to Estate Planning series by discussing Wills. This month I will be answering what is an Enduring Power of Attorney, or an EPA, and next month I will conclude by discussing Personal Directives or PDs. The goal of this series is to provide valuable information to the community about the importance of Estate Planning.

While most people have heard of a Will, not everyone is familiar with the Enduring Power of Attorney and Personal Directive. The Enduring Power of Attorney appoints someone who will look after your financial and property interests if you are no longer able to do so yourself.  

This article will discuss the importance of the Enduring Power of Attorney. In a lot of instances this document, along with the Personal Directive, can be almost more important than a Will as there is no presumption as to who your Power of Attorney would be should you need one, not even your spouse. I will also be attending the Senior’s Expo later this year on April 27th, 2024, from 9am – 3pm to meet with members of the community and answer any questions you or your families may have about estate planning.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal document that you create when you are capable, and of sound mind, where you appoint someone to be your Attorney. An Attorney’s role is to manage your property and finances should you ever require assistance.  A common question is often, “can’t I just appoint an Attorney if I ever need one?”. The answer is no. The Enduring Power of Attorney must be written by a person who has the mental capacity and ability to understand what an Enduring Power of Attorney is at the time that they sign it. This document is very important as it sets out who you want to take care of your property and finances should you ever suffer a stroke, dementia, or any other type of illness that impacts your ability to make reasonable decisions.

The Enduring Power of Attorney document will also lay out certain powers and responsibilities that your appointed attorney must follow.

There are certain steps that must be taken to ensure an Enduring Power of Attorney is an effective legal document. It is important to discuss these measures with a lawyer to ensure that your EPA is effective and valid.

What are the consequences if you don’t have an Enduring Power of Attorney?

An Enduring Power of Attorney is very important because if you are ever in a situation where you cannot make reasonable, informed decisions for yourself, for example severe dementia, a bad stroke, or an accident, and you need someone to make important decisions for you or take care of your property, for example paying your rent or mortgage or ensuring bills are paid, then your appointed Attorney will be able to step in and assist you. If you do not have a signed Enduring Power of Attorney, there is no assumption in the law as to who would be the person to assist you, not even a family member. In such a case, your loved ones would have to make a costly, and often time-consuming application to the Courts, to be appointed as the person who can take care of you. This could create delays in paying your bills and maintaining your lifestyle and have significant consequences.

In addition, the person who applies to the court to be appointed as your trustee may not be the person you would want to take on that role. An Attorney has a lot of responsibility and there are unfortunately many instances in which we see people, especially our senior citizens, get taken advantage of by bad actors.

Summary

The Enduring Power of Attorney is an important part of the Estate Planning toolbelt. It allows you to control who will take care of your property if you are ever in a position where you are unable to. It saves your loved ones from the grief and expense of costly court applications, and it provides valuable piece of mind that should something happen to diminish your capacity that your interests are looked after.

Look for my article on Personal Directives next month.