When an Enduring Power of Attorney Becomes Effective

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When an Enduring Power of Attorney Becomes Effective

EPA is an estate planning tool that makes it possible to grant another person the power to make decisions over your affairs either financial or welfare in the event you are not able to make these decisions by yourself. This type of estate deed is drafted while you are still in your correct state of mind or on the verge of mental incapacity. The purpose of an EPA is to ensure that your affairs are effectively managed in the event you cannot make decisions upon them. But when does the EPA take effect? Well, since it is drafted while you are still capable of managing your assets, you can also decide when your EPA becomes effective. Incapacity is one of the major factors that effectuates the drafting of an EPA. But what does it mean by being “incapacitated”? How it is defined varies from one individual to another but the definition of the term “incapacity” by a family estate lawyer or a family court should be your answer. Below are some events when the EPA becomes effective:

When You’re Mentally Unable to Decide Over Your Affairs

Mental incapacity is the main reason for an EPA. In the event you cannot think straight and decide over your affairs, an EPA takes into effect. In most cases, when you are incapable of managing your personal affairs such as medical care and general personal care, the EPA becomes effective immediately.

In case the EPA covers the decision to be made over your financial affairs or your assets, there are two options. You can activate your EPA anytime even when you are within your mental capacity to manage them. The second and obvious event is when you become incapacitated and unable to manage your affairs, if it is so, the EPA takes effect immediately.  

Mental incapacity to make decisions over your affairs is the main reason for the EPA estate tool. You are deemed as mentally incapable when your medical associate or a family lawyer judges that you are mentally incapable. However, your healthcare associates may waste a lot of time trying to prove whether you are still mentally able to manage your affairs or not. When exactly are you declared “mentally incapable?” There are set criteria the surrogate court uses to determine whether one is mentally stable or incapacitated.

Criteria used to determine mental incapability to manage personal affairs:

When personal affairs are involved, you are rendered mentally incapable of making decisions for yourself based on the criteria that:

  • You can’t make decisions over your personal affairs anymore
  • You do not understand the decisions you are supposed to make or the ones you are currently making
  • You are not aware of the implications of your decisions
  • You cannot discuss the decisions with other people

Criteria used to determine mental incapability to manage financial affairs:

In cases where your assets are involved, you are deemed to be mentally incapable of making decisions over your financial affairs when you fail to think and decide rationally and within a logical scope.

Determining if you are mentally incapable is a critical process that has two extreme possibilities. One is that your affairs may be safe when you become mentally incapable of deciding over them and the second one is that you can be denied certain rights over your assets when you are termed as mentally incapable and you are not incapable. To avoid the latter option, you should indicate on your EPA deed, the associates you wish to perform mental incapacity tests on you. They may be; mental health nurses, elderly care lawyers, etc.

FAQs

How does an EPA work?    

An EPA estate tool gives an agent the power to decide over your affairs when you are mentally incapable.

Who are donors and attorneys in an EPA deed?

Donors in an EPA are individuals who own the EPA while “attorneys” are agents who make decisions on behalf of donors.

Why do I need an EPA?

An EPA grants you with your estate planning objectives by protecting your fiscal affairs from abuse and making certain your wishes are respected.

What is the scope of EPA?

EPA has two wide scopes by which they cover estate planning needs. These scopes are the personal affairs and welfare EPAs and the property or assets EPA

What occurrences can effectuate changes on an EPA?

 The first occurrence is when you regain the mental capacity of managing your affairs, in an event of moving an attorney, when the attorney resigns, when the EPA contract term ends or when you deliberately cancel it.

DISCLAIMER: The information provided in this blog is for informational purposes only and should not be considered legal advice. The content of this blog may not reflect the most current legal developments. No attorney-client relationship is formed by reading this blog or contacting Morgan Legal Group.

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