Personal Directives and Enduring Powers of Attorney

In the current climate of uncertainty, some people are looking at their wills and estate documents and asking questions about how they work. This post will address Personal Directives and Enduring Powers of Attorney and how they can be revoked.

Personal Directives and Enduring Powers of Attorney: A Brief Refresher

A Personal Directive (“PD”) is the document that gives someone else (called your Agent) the power to make decisions of a personal nature for you. This can include things like medical care, where you live, what kinds of activities you can engage in, and other personal care decisions.

An Enduring Power of Attorney (“EPA”) is the document that gives someone else (called your Attorney) the power to make decisions of a financial nature for you. This can include paying bills for you, access to your bank accounts, selling property, and other financial decisions.

EPAs can either come into effect when you sign them (called Immediate EPAs) or you can make them come into effect upon a contingency occurring, like you losing mental capacity. Usually this will happen when two medical doctors certify that you have lost capacity. PDs, on the other hand, can only come into effect upon mental incapacity. As the person signing, you get to decide how each document will come into effect.

Without these documents, someone has to apply to the Court for the power to administer your affairs (Trusteeship and/or Guardianship), which can be costly and time-consuming. These can be very useful documents if you are unexpectedly incapacitated, for example following an accident, or as you get older and need assistance. You can also plan to use them if you are going in for surgery or otherwise expect to be incapacitated for a period of time.

Both documents only work while you are alive. Once you are deceased, your designated Executor named in your will takes over your affairs.

Why Would I Want to Revoke my PD or EPA?

PDs and EPAs are not invalidated by getting married, entering into an adult interdependent partnership, getting separated, or divorcing. If you end a relationship, it is important to review the documents like your EPA and PD to ensure that the person named is still the person you want to act in that role.

In addition, you may want to revoke your documents if the person named as your Agent or Attorney dies, becomes incapacitated, or is no longer able to fill the role.

How Do I Revoke my PD or EPA?

There are several different ways to revoke PDs and EPAs, but it must be done in writing.

• PDs and EPAs can be drafted to include clauses that revoke them based on certain events. Once that event occurs, the PD or EPA will no longer be valid.
• You can also revoke part of a PD or an EPA with a new document that revokes only that part, and keeps the rest intact.
• Drafting a new PD or EPA with a clear statement that revokes any previous PDs or EPAs will also revoke the previous document.

You must have mental capacity when you revoke your PD or EPA. Once you revoke your documents, you should destroy any originals or copies of the previous documents to avoid confusion. You should also inform the individual formerly named to act as Agent or Attorney that they will no longer be able to exercise that authority.

If the PD or EPA has been activated and you do not inform your Agent or Attorney of the revocation, they may continue to act on your behalf, and you may be bound by those actions. If the PD or EPA has been activated, you should also inform people who might have been dealing with your Agent or Attorney (like bankers, investment advisors, or a nursing home) that the PD or EPA has been revoked so that they no longer take instructions from that person. If you own any real estate, a lawyer can register a notice of the revocation on the property title to prevent any unauthorized transactions.

Takeaways

PDs and EPAs give someone else authority to manage your finances or personal care when you are mentally incapacitated. Although they are useful and important documents, under certain circumstances you might want to revoke them. Make sure any revocation is done properly and in writing, and notify the proper people to make sure the revocation is effective. We recommend consulting with a legal advisor before drafting or revoking an EPA or a PD.

If you have any questions regarding your Estate Planning please contact the author of this article, or any member of our Wills, Estates & Trusts Team.