When an Enduring Power of Attorney Takes Effect

One of the most common questions about an enduring power of attorney is: "If I sign it today, will someone else manage my accounts tomorrow?" The answer is no. Signing the document and activating it are two separate stages, and many years may pass between them. Sometimes the document is never activated at all. This article explains how it works and what is worth defining in advance. A general explanation of the arrangement appears on the enduring power of attorney page.

Signing is not activation

After you sign an enduring power of attorney and register it, it stays "in the drawer", waiting for the day of command. As long as you have capacity, you make all decisions yourself, and the arrangement does not restrict you. The document begins to operate only when the activation condition you set in it is met.

This is one reason why completely healthy people prepare the document. It does not give up control. It prepares an answer for the day you may need help.

What activation conditions can be set

The wording is your decision, and with a lawyer's help it can be adapted to your needs. Here are some directions that are commonly considered:

• A medical opinion. The condition is that a specific physician (a family doctor, for example), or a specialist in the relevant field, determines that you can no longer manage your affairs.
• A partial, graduated condition. Different areas are activated at different times and under different conditions. For example, managing a bank account may be activated at an earlier stage, while decisions about residence are activated only under stricter conditions.
• Immediate activation for a specific area. You can provide that a certain area operates immediately, for example when you want help managing accounts even while you still have capacity. This is a decision to weigh carefully with your lawyer.

The choice depends on the circumstances, and the law sets a framework within which you can act. That is why it is worth drafting the condition with a lawyer. Generic and vague wording should be avoided.

Who decides that the condition was met

This is one of the most important questions, and it is worth settling in advance. If the condition is "lack of capacity", someone has to declare it. You could, for example, provide:

• that the condition is met according to the opinion of a physician you choose in advance;
• that the opinion of more than one physician is required;
• that a particular family member or another person must approve the transition.

A clear mechanism reduces family disputes. When the wording is vague, an argument may arise at the least convenient moment: who is authorized to decide, and when can the attorney begin to act.

What happens in practice at activation

When the condition is met, the attorney can begin to act in the areas defined. The law imposes duties connected with the process and with the authority each attorney receives at the time of activation, such as notice to the relevant parties and reporting to the Office of the Public Guardian, so the attorney does not act "quietly". The details of these duties and procedures may change, so it is worth checking them with a lawyer at the time of activation.

The attorney must act in your best interests, according to your instructions, and within the limits you set. The attorney does not have free rein to do as he or she pleases, and the guidance you wrote in the document is what directs the attorney.

An enduring power of attorney compared with an ordinary one

An ordinary power of attorney operates immediately upon signing and usually loses its validity if the principal loses capacity. An enduring power of attorney is built the opposite way: it is placed on standby, and begins to operate precisely when capacity is impaired. That is why the activation condition matters. In effect, it is the bridge between the day you have capacity and the day you may need help, and the more clearly it is worded, the simpler and more predictable the transition is for everyone involved.

What about the family

A clear activation condition is also a gift to family members. Without it they may find themselves arguing over whether the time has come, and over who decides. When the document already says who decides and how, they can focus on the care itself rather than on proceedings. It is worth talking with close family members about the arrangement, even if not every detail is shared.

What to define in advance

• A clear condition. Wording that makes it possible to check whether it was met, not a general phrase like "when things become difficult for me".
• A deciding party. Who determines, and how. Setting a mechanism for deciding.
• Separate areas. Whether all areas are activated together or each has its own condition.
• A substitute. Who acts if the first attorney cannot or does not want to.
• Guidance. Preferences about residence, care and management of assets, so the attorney does not have to guess.

Common mistakes

• A vague condition. Wording without a clear criterion leads to disagreements and delays.
• Depending on one person. If only one particular physician may decide and is unavailable, the document may remain unused.
• Forgetting to update. People change doctors, and family relationships change. It is worth reviewing the conditions every few years, or alternatively to sidestep this (for example: "as determined by the family doctor at that time").
• Assuming it is automatic. Anyone who expects the document to "start working by itself" may be surprised, because a determination and orderly steps are required.
• Not informing anyone. If nobody knows the document exists and what its activation condition is, it is hard to act on it.

Frequently asked questions

Can the attorney activate the document alone? It depends on the mechanism you set. It is common to define another party, such as a physician, to prevent unnecessary activation.

Can I change the activation condition after signing? Usually yes, as long as you have capacity. A change is made in an orderly procedure.

What if I recover? Depending on the wording of the document and the law, there may be ways to stop the activation or cancel it. It is worth clarifying this with your lawyer already at the drafting stage.

Can the document operate while I still have capacity? You can provide this for certain areas, but it is a decision to weigh carefully.

How to start

If you are preparing an enduring power of attorney, think in advance about the activation condition and about who will decide. The first step is to speak with the people you are considering appointing and write down your answers to the questions above. To discuss your case, you are welcome to contact us.

The information in this article is general and is not legal advice. Law and procedures change, and every case is examined on its own merits.