Enduring Powers of Attorney: Essential, but Not Enough on Their Own

An Enduring Power of Attorney (EPA) allows another person to manage your personal and property affairs if you lose mental capacity.

For most people, that includes ordinary but essential things — bank accounts, utilities, insurance, property held in their own name, and dealing with organisations that need a clear legal authority to act.

This is why EPAs matter. Without one, even straightforward matters can become difficult.

What EPAs do not do is override the legal structures that sit around companies and trusts. That distinction is often missed, and it is usually where problems start to appear.

Personal authority versus legal roles

An EPA operates in relation to you as an individual.

Companies and trusts operate through roles created by statute and governing documents. A director or a trustee holds office because the relevant law and documents say they do — not because they personally own the underlying assets.

When someone loses capacity, their personal authority changes. The authority attached to offices they hold does not automatically move with it.

That is the gap people are often surprised by.

Directorships

A company director is appointed in accordance with the Companies Act and the company’s constitution. The role comes with duties that must be exercised by the person appointed to that office.

Even with a valid EPA in place:

• An attorney does not become a director

• A director’s decision-making powers do not transfer to the attorney

• Documents still need to be signed by properly appointed directors

An EPA may allow an attorney to exercise shareholder rights if the individual holds shares. That may include appointing or removing directors, depending on the constitution. But that is a different legal function from acting as a director.

Where there is only one director, or where the company acts as a trustee, loss of capacity often exposes how little thought has been given to who is meant to act next.

Trusteeships and appointment powers

Trusteeship is also a personal office.

Trustees must make decisions themselves and in accordance with the trust deed. Those responsibilities cannot simply be assumed by an attorney under an EPA.

When a trustee loses capacity, there is usually still a mechanism to appoint a replacement. The issue is not whether an appointment can be made, but:

• who is entitled to make it

• when it can be done

• and whether that outcome matches what the trustee would have intended

Where a person also holds the power to appoint and remove trustees, loss of capacity can shift that power in ways that were never actively chosen.

The trust continues to exist. The law continues to function. But the trust may now be operating under a decision-making structure the original trustee never turned their mind to.

How this plays out in real life

These issues rarely show up while someone is well.

They tend to appear when:

• documents are needed quickly

• third parties are involved

• or decisions can’t wait while authority is clarified

At that point, the question isn’t whether an EPA exists. It’s whether the EPA, trust deed, and company documents actually point in the same direction.

Bringing the pieces together

An EPA is essential for dealing with personal assets and obligations.

If you are also a director, a trustee, or the holder of appointment powers, those roles sit within their own legal frameworks. They need to be considered deliberately, using the documents that govern them.

Most of the time, this is not about adding anything new. It is about reading what already exists and understanding what happens if you are no longer able to act.

That exercise tends to be far simpler — and far less stressful — while capacity is not in question.