When can an EPA come into effect?

An EPA can be created while the donor is still mentally capable, or it can be made to take effect only if the donor becomes mentally incapacitated. An ordinary POA is best used for temporary purposes. 

Who can make decisions

An EPA's attorney can make decisions about the donor's property or personal care and welfare, as specified in the EPA. A POA automatically ends if the donor is declared mentally incapable. 

When an EPA is invalid

An EPA is invalid if it's not arranged before the donor becomes mentally incapacitated. 

How to get an EPA

To sign a valid EPA, the donor must understand the document in general terms. If there's any doubt about the donor's capacity, a medical certificate can be obtained from a qualified doctor. 

Witnessing an EPA

An Enduring Power of Attorney (EPA) must be witnessed, just like an ordinary power of attorney, but there are different requirements for witnesses for the donor and attorney signatures. The donor's signature must be witnessed by an authorised witness, typically a lawyer or legal executive. This witness also has to provide specific explanations and advice to the donor about the EPA. The attorney's signature, on the other hand, can be witnessed by any independent adult, but they cannot be the donor or the witness to the donor's signature. 

The Donor's Signature:

• Must be witnessed by an authorised witness: This is typically a lawyer or a legal executive who meets certain requirements, or an authorised officer of a trustee corporation. 
• The witness must provide specific explanations and advice: The witness must explain the effects and implications of the EPA to the donor and provide advice on certain matters. 
• There are restrictions on who can witness: The witness cannot be the donor, the attorney, or a relative of the attorney, and must be independent of the attorney and any successor attorney named in the EPA. 
• The witness must explain the implications of the EPA to the donor before they sign to ensure they understand the EPA and what it means (i.e. it’s effects and implications for the donor). The witness must also have no reason to believe the donor is mentally incapable.

Importance of the witness

The witness verifies that the donor understands the document and is signing freely. 

The Attorney's Signature:

• Can be witnessed by any independent adult: The witness needs to be at least 18 years old and cannot be the donor or the witness to the donor's signature.

• No specific explanations or advice are required: Unlike the donor's witness, the attorney's witness does not need to provide advice or explanations about the EPA.

• Attorneys can witness each other's signatures: Attorneys or replacement/successor attorneys can witness each other's signatures, but not the donor's. 

Who can't be a witness?

The witness can't be a minor (a person under 18 years of age) or a relative of the attorney, their spouse or partner, or live at the same address as the attorney. 

Government mandatory EPA forms

The government now has mandatory standard EPA forms that must be used to create an EPA. You can download the forms from the Ministry of Justice website here:

Personal care and welfare: Used to appoint an attorney to make decisions about your personal care and welfare 

Standard explanation of effects and implications - EPA personal care and welfare

Form - EPA personal care and welfare

Property: Used to appoint an attorney to make decisions about your property 

Standard explanation of effects and implications - EPA - property

Form - EPA property

Who should prepare your EPA?

While you can prepare an EPA yourself, it is not recommended, particularly if you are a person with FASD. These are important legal documents and it is really important to get them right.  While cost is a factor for many people, getting it wrong can be more risky and costly in the long-run. 

A lawyer that specialises in Disability Law will ensure that the form(s) are filled in correctly, and meet the person’s specific needs and situation. They will use supported decision-making, give tailored advice, and a disability expert will make sure specific considerations relating to your disability are covered in the EPA.  A lawyer also has a duty of care to make sure the person has capacity to make an EPA, and that they are not being coerced, manipulated or taken advantage of in the process.

However, if you are a caregiver and want to do it yourself the process is set out below.

What to do next 

• Read the standard explanation document
• Fill out the form
• Get the form witnessed by an authorised witness
• Activate the EPA if necessary
• Inform your care provider and anyone else who may need to be involved

You can change, replace, or revoke your EPA at any time while you have decision-making capacity. You should get legal advice on how to do this. 

How to activate an EPA

An Enduring Power of Attorney (EPA) is activated when a medical practitioner assesses that the donor lacks the decision-making capacity to manage their personal care or welfare or property. The medical practitioner will then issue a certificate of mental incapacity. 

Steps to activate an EPA 

While there is no prescribed process in law to activate an EPA, this is a common-sense approach to the process.

• A medical practitioner assesses the donor's decision-making capacity
• If the donor is deemed mentally incapable, the medical practitioner provides a certificate
• The certificate is provided to the lawyer
• The law firm notes that the EPA has been activated
• Certified copies of the EPA are released to the attorney

What happens after the EPA is activated?

• The donor or their attorney must inform their care provider of the activated EPA, and the care provider will want a certified copy of the EPA.
• The donor or their attorney must provide the care provider with the attorney's contact details. 
• The attorney is responsible for making important decisions about the donor's care, health, and welfare.

How to revoke an EPA 

The donor or their attorney can revoke the EPA by providing written notice to their attorney and successor attorney.