Enduring Powers of Attorney
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4. Commencement of the EPA

As discussed, a donor has the option of having the EPA take effect:

  • immediately -- on the date it is signed before the solicitor; or
  • on a later specified date; or
  • upon the occurrence of a later event.

So what should the donor choose?  Since the fundamental purpose for making an EPA is to cater for the situation where the donor loses mental capacity, it appears that letting an EPA commence upon its execution, i.e. when the donor is still mentally sound, is not a very attractive idea.  To let an EPA commence on a later specified date would be even more problematic because the donor will definitely ask this difficult question: “on what criteria should I specify this later date?”  Looking again at the fundamental purpose of making an EPA, one would logically arrive at the conclusion that the most appropriate commencement event would be: when the donor shows signs of incapacity.  The donor may use this as a general principle and fine-tune the wording of his instructions in the EPA.  Some possible variations of this principle are:

  • This EPA takes effect when the attorney reasonably believes that I am mentally incapable or am becoming mentally incapable.
  • This EPA takes effect when I am diagnosed by a registered medical practitioner to have shown signs of mental incapacity.
  • This EPA takes effect when I am diagnosed by a registered medical practitioner to be suffering from dementia, Alzheimer’s disease or any form of mental incapacity.
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