Legal Advice – When mum or dad are struggling

It often starts with small things. Mum forgets to pay the power bill, again. Dad seems confused about his medications, or the fridge is nearly empty when you pop in for a visit. For many families, there comes a point when it becomes clear that a parent is struggling and may need help.

If your parent set up an Enduring Power of Attorney (EPA) while they were well, you may be named as their attorney — the person legally authorised to step in. But what many people don’t realise is that being named in an EPA doesn’t automatically mean you can start making decisions on your loved one’s behalf. There are important steps to follow first.

An EPA is a legal document that a person (the “donor”) signs while they have mental capacity, giving someone they trust authority to act for them if they can no longer manage on their own. There are two types of EPA: one for property and finances, and one for personal care and welfare, including health decisions and living arrangements.

This is where many families get caught out. For personal care and welfare decisions, an attorney generally cannot act on any significant matter, such as arranging rest home care or making medical decisions, until a doctor or qualified health practitioner has formally assessed the person and issued a certificate of mental incapacity. This is often referred to as “activating” the EPA.

For property and finances, the rules depend on how the EPA was set up. Some allow the attorney to act straight away (with the donor’s consent while they still have capacity), while others only take effect once a doctor confirms the person has lost capacity.

When assessing mental capacity, the doctor considers whether your parent can understand the decisions they need to make, foresee the consequences, and communicate their wishes. If they cannot do one or more of these, the doctor will issue a certificate confirming mental incapacity.

This certificate, along with a certified copy of the EPA, is then presented to organisations you need to deal with, such as banks, rest homes or Work and Income, so you can act on your parent’s behalf.

The certificate must meet strict legal requirements. If anything is missing or incorrect, it may not be accepted, which can cause delays at a time when things need to run smoothly. The lawyer holding the original EPA can help check the certificate, liaise with the doctor if needed, and provide certified copies.

If you’re watching a parent struggle and you know an EPA is in place, it may be time to visit the doctor.

This article is general in nature and is not a substitute for legal advice. If you have questions about enduring powers of attorney, contact your lawyer.