Capacity to make an EPoA

Capacity to make an Enduring Power of Attorney

It is a requirement of all enduring powers of attorney that the principal makes the document freely and understands its nature, importance and effect and that the witnesses are satisfied of this.

See also section on Capacity

To make sure that your client has understood the nature, importance and effect of each Enduring Power of Attorney and to create a record of this for your file, it is a good idea to develop a checklist of questions to ask before executing any Enduring Power of Attorney. (See Office of Public Advocate publications.) Questions should be adapted for each client to determine whether the client is making their enduring powers of attorney voluntarily and freely, such as:

  • What brought you to make your powers of attorney today?
  • Has anything ever caused you to doubt your trust in your nominated attorney/s?
  • Do you believe that your nominated attorney/s understand and respect your wishes and will make the decisions they believe you would make for yourself?

Suggestions for a checklist

Enduring Power of Attorney (financial)

  • What is an Enduring Power of Attorney (Financial)?
  • Who have you appointed?
  • How are they appointed?
  • Are there any limitations, conditions or instructions on your EPA financial?
  • When does the power start?
  • What sort of things can your attorney/s do for you?
  • If you lose capacity, can the attorney/s still continue to act?

Personal Power of Attorney

  • What is an appointment of a personal attorney?
  • What sort of decisions can they make?
  • When does the power start?
  • Who have you appointed?

Advance Care directives and appointment of medical treatment decision maker or support person.

  • What is an Advance Care directive?
  • What is a medical treatment decision maker?
  • When does the power start?
  • Who have you appointed?
  • When can the medical treatment decision maker act for you?
  • What sort of decisions can the decision maker make?

Changing or revoking powers of attorney

Powers of attorney can be changed or revoked in different ways:

  • A client can change a power at any time as long as they still have capacity.
  • Since the commencement of the Power of Attorney Amendment Act 2016 on 1 May 2017, an older power is automatically extinguished by the making of a new power.
  • The client’s death or the attorney’s resignation will extinguish a power.
  • The destruction of the document and any certified copies will also extinguish powers.

The appointment of an administrator or guardian can extinguish powers given to attorneys, depending upon the scope of the appointment.

If powers have been revoked, the previous attorney(s) and relevant agencies need to be informed.