In this edition of 'It depends', associate Sarah Camm talks about when you might be entitled to a copy of someone else's Enduring Power of Attorney.
Hi everyone and welcome to this week's session of It Depends. My name's Sarah Camm, and I'm an associate here in the private clients team at Cooper Grace Ward. I've spoken in another session about when you might be entitled to a copy of someone's Will and today I'm going to speak about when you might be entitled to a copy of someone else's Enduring Power of Attorney.
What is an enduring power of attorney?
An Enduring Power of Attorney (EPOA) is a document where one person known as the principal appoints other people as their attorneys to make decisions on their behalf in relation to financial and health and personal matters. We've spoken about Enduring Powers of Attorney in plenty of other It depends videos.
I know I am my mum's attorney, how do I know where the original document is being kept?
Ideally, if someone's looking to appoint you as their attorney, they'll have a chat with you about it first and hopefully as part of that, they can speak about where it's being kept. You'll also have to sign a copy of their Enduring Power of Attorney to accept their appointment of you as their attorney. You can't make decisions for the principal until you've signed this acceptance. You're able to take a photocopy of the document. You can keep that for your records. However, if your mother later loses capacity, a bank and other institutions will probably need a certified copy, not just a photocopy. You should speak to the principal about whether they're looking to store the fully signed version at home, somewhere safe or with their lawyer. Often, if they're keeping it with their lawyer, they'll also have a certified copy at home.Some Enduring Powers of Attorney are registered with the titles office, but that's rare because it costs a fee and also it's not always necessary, only really if you're looking to use it to sell property.
Is the principal's lawyer required to provide me with the person's EPOA?
The answer to this question is it depends, and it depends on a number of factors, including when the power comes into effect. So, for example, are you appointed to act immediately or only when the principal has lost capacity in which case you probably need to prove to the lawyer that the principal has lost capacity before they give you that copy. It's also going to depend on whether you're the sole attorney or whether you're appointed as a substitute attorney. If you're the substitute, you're going to have to prove that the person who is appointed to act for you can no longer act themselves. If you're appointed as a joint attorney, that means that you and another person have to actually make decisions in agreement about the principal's, health or personal or financial matters, in which case that other person will probably need to go to the lawyer as well to get a copy of The Enduring Power of Attorney. The Enduring Power of Attorney itself may have specific conditions in there that the principal wanted you to satisfy before the lawyer releases a copy of that document to you. For example, the document itself might say, I want a doctor to sign off on the fact that I've lost capacity before this form is given to the attorneys. Even if you're a financial attorney and you're appointed to act immediately, the lawyer will probably look to get their client's instructions before releasing the document to you, just to make sure that the principal hasn't revoked the document in the meantime. If you're having any difficulties obtaining documents that you think you need to assist someone on who's behalf you act as attorney please contact a member of our private clients team.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.