Last month we discovered how important it is to make an Enduring Power of Attorney (EPO) early and to not wait until it “is needed”, that is when it is too late.
When is it too late? Well, that is once you have lost capacity. The majority of people I see are making an EPOA for that “what if” situation. The car accident. The onset of dementia or just the inability to make decisions for themselves.
So what is capacity? Capacity to make a decision comes down to:
1. Do you understand the nature and effect of the decision to be made; and
2. Can you make that decision freely and voluntarily; and
3. Can you communicate your decision.
Capacity is all of the above and all criteria must be met. If you can’t do one or the other then you no longer have capacity.
There are Guidelines to follow to determine if an adult has capacity.
The first step is to always assume that an adult has capacity. The Guidelines can be found online at www.publications.qld.gov.au/ dataset/capacity-assessment-guidelines/resource/23e5bde1-40d7- 4115-a15d-c15165422020
Who is to determine if you have capacity to make an EPOA? You guessed wrong – it is not your doctor. It is the person witnessing your signature on the EPOA. This is normally a Solicitor, a Justice of the Peace or Commissioner of Declarations. That’s a very important assessment to make!
Whilst a DIY EPOA might be cheaper than seeing a Solicitor, do you want to risk your EPOA not being valid when you most need it? Do yourself a favour and have your EPOA prepared by an experienced Solicitor.