Understanding your options when there’s no Enduring Power of Attorney (EPOA)

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Most of us don’t like to think about losing the ability to make our own decisions, but it happens more often than we expect. When a loved one is no longer able to manage their property or finances due to illness or injury, and they haven’t put an Enduring Power of Attorney (EPOA) in place, families are often left unsure of what to do next.

In these situations, the Family Court can step in to help, but it’s important to understand what’s involved.

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What is the Protection of Personal and Property Rights Act, 1988?

This law gives the Court the power to grant an order appointing someone to look after the property and financial affairs of a person who can’t do so themselves. That person might be a parent, partner, adult child, or friend who has become mentally incapacitated.

If no EPOA is in place, an application must be made to the Court to appoint someone to manage that person’s property. The Court will look at the person’s financial situation and decide whether to appoint a Property Administrator or a Property Manager.

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Property Administrator vs Property Manager, what’s the difference?

The key difference is the value of the person’s assets and income.

A Property Administrator may be appointed when:

• No single item of the person’s property is worth more than $25,000, and

• Their annual income or benefit is less than $38,000.

This role comes with fewer ongoing reporting requirements and is generally suited to simpler financial situations.

A Property Manager is appointed when:

• The person owns property worth more than $25,000 (even a car or bank account could tip this over), or

• Their income exceeds $38,000.

This role involves more oversight and responsibility, including regular financial reporting to the Court.

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What are the responsibilities of a Property Manager or Administrator?

Whether appointed as a Property Manager or Administrator, the person in this role must:

• Always act in the best interests of the person whose property they’re managing

• Keep that person involved in decisions as much as possible

• Work closely with any other appointed decision-makers (such as a Welfare Guardian or co-manager)

• Keep clear records and, in the case of a Property Manager, submit regular financial statements to the Court. A statement of Management must be filed three months after an order is granted, including bank statements and supporting documents like receipts. After that, statements must be filed annually. If the property manager fails to comply, the Court may issue an order enforcing their duties.

It’s important to note that this is not a paid role. You may be reimbursed for some out-of-pocket expenses, but otherwise, you’re expected to carry out the duties without payment.

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What’s involved in making a Court application?

To apply to be appointed as a Property Manager or Administrator, a set of documents must be filed with the Family Court, including:

• The application form

• A supporting affidavit

• A recent medical report confirming the person’s incapacity

• Statements of consent from other interested parties (like siblings or children)

• An information sheet for the Court

• And sometimes an application to avoid formally serving documents on the person, if that’s appropriate.

When applying for an Order to Administer Property or be appointed as a Property Manager, each item of property, income or benefit which is required to be administered or managed must be set out for the Court.

If the Court agrees there’s an urgent need, it can make an interim order while the full application is being considered.

The Court will also appoint an independent lawyer for the person concerned. That lawyer will meet with them (if possible), investigate the situation, and provide a report to the Court.

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Will the person need to go to Court?

If the Judge believes the person may still understand what’s happening, they might need to attend a brief Court appearance. But if there’s strong medical evidence that they cannot understand the proceedings, the Court can excuse them from attending.

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How long does the order last?

An order appointing a Property Manager usually lasts for up to three years, but the exact date will be set by the Court.

It’s very important to apply for a review before the order expires — if you don’t, the order will automatically lapse, and you’ll no longer have the legal authority to manage the person’s property. The Court won’t send you a reminder, so it’s up to you to keep track of this date.

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Insider tips for a smoother process:

1. Gather consents early. If family members agree with the application, get their signed consent before you file. This can speed up the process considerably.

2. Expect delays if there's no agreement. Without consent, the Court requires formal service of documents, which can add weeks or months to the timeline.‍

3. If conflict is likely, get advice first. If you suspect that another family member might object to your application, it’s best to speak with a lawyer before filing. It’s better to be prepared than surprised.

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We’re here to help

Navigating this process can be emotional and confusing, especially when you're also caring for a loved one who is unwell. At Denham Bramwell, we regularly help families apply to the FamilyCourt for these types of orders and can guide you through every step of the process.

If you’d like to talk to a lawyer about your options, or if you’re unsure whether you need to apply, feel free to contact us.

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