An Enduring Power of Attorney (EPA) must be witnessed by a Justice of the Peace, a Commissioner for Declarations, a Notary Public or a Lawyer. But witnessing an EPA is not just watching someone sign it. The witness must certify that decision making capacity exists.
The validity of EPAs is regularly brought into question via QCAT Applications that allege insufficient capacity. And when QCAT needs to consider capacity, it can and will come knocking on the witness’ door.
Amongst other things QCAT might:
- ask the witness for details of the witnessing process and steps the witness took to be satisfied that capacity existed;
- order the witness to give QCAT all notes, records and other things that the witness has about the process and steps.
If you’re a witness to an EPA what would you say about how you satisfied yourself that capacity existed? Do you know what the law requires for someone to have capacity for an EPA? Do you know how to assess capacity?
Given the prevalence and various stages of dementia, EPA witnesses live in uncertain and potentially dangerous times. At any one point in time, a person might have capacity for some decisions but not all decisions. Capacity can be difficult to assess.
An EPA is rightfully considered a complex legal document. Hence the threshold for capacity for an EPA is relatively high.
Whether or not capacity exists is a legal question and, if necessary, it is decided by a Court or QCAT. That decision is usually guided by medical evidence, especially as to the nature and extent of cognitive impairment.
EPAs that are invalid cause a substantial loss of time, money and emotional energy for QCAT, the Public Guardian, the person who makes the QCAT Application, the EPA witness, and sometimes family or friends who need to respond to the Application.
More importantly the invalidity debacle can cause or exacerbate angst, friction and fractures in the family and other relationships of the maker of the EPA – the very person whose interests need to be protected – the very person whose transition into supported or substitute decision making was supposed to be a smooth one.
And the invalidity debacle is a serious distraction at a time when the focus should be firmly on the financial and personal decisions that need to be made for the maker of the EPA.
Worse still – if the EPA is witnessed when there is a lack of capacity and there isn’t anybody to challenge the validity of the EPA then the witness may well have made substantial financial abuse a lot easier for the Attorney. That’s another very long topic for another day.
In conclusion – if capacity is in doubt, witnesses should take stock and tread carefully. Sometimes it might be best to decline to witness the EPA until a full and proper assessment of capacity.
Many would remember the ‘Lost in Space’ television series filmed in the late 60s. If you do and you’re an eligible EPA witness then, as you approach your task, let your ears ring with the sounds of … “danger Will Robinson”. You might well be pleased that you do.