Powers of health attorneys under EPAs and AHDs

posted Aug 8, 2015, 7:24 PM by Michael Rees   [ updated Aug 8, 2015, 9:43 PM ]
A mentee of Linda M raised a question whether there were any differences between the powers of a health attorney appointed under an AHD and a health attorney appointed under an EPA. 

Linda approached the JP Branch and received a useful summary of AHDs v EPAs from Greg Thompson but still left the answer hanging:

Effectively, the EPA and AHD may be viewed as “stand alone” documents, though people may have both in place.
 
There are a couple of significant differences between the two with respect to attorney involvement:
    • AHD: This documents deals primarily with what specific types of medical treatment or intervention the principal does, or does not wish to receive, in the event of various medical conditions/situations. An AHD would come into effect only in the event that the principal no longer has the capacity to make such decisions for themselves or if the principal wants such directives to apply only if they are terminally ill.  The AHD does not require the principal to appoint an attorney(s), though there is provision on the document for the principal to do so (see Section 7: Appointing an attorney for personal/health matters). It is in this section that the principal would provide specific instructions regarding the attorney’s(s) authority in personal and health matters.
    • EPA: Both the Short Form and Long Form have provision for the principal to appoint an attorney(s) for personal/health, as well as financial matters, though under the Short Form the principal may choose to authorise the attorney for financial matters only. The Short Form is used if the principal is appointing the same attorney(s) for both financial and personal matters and the Long Form would be used if the principal is appointing  a different  attorney(s) for financial and personal/health matters. However,  the EPA forms do not contain provision for the principal to provide detailed directions regarding their health care wishes as does the AHD.
Accordingly, a Short Form EPA may not necessarily confer authority on the attorney(s) to make personal/health decisions for the principal and each document would need to be checked to determine what authority had been conferred.
 
Essentially, it is an individual’s decision to put either an EPA or an AHD (or both) in place. If, as JPs, we are questioned regarding the relative merits and/or conferred powers of the respective documents, it would best to refer the person to the Office of the Public Guardian for advice and guidance.

Subsequently Linda spoke directly with Sandra at the Office of the Public Guardian. Sandra sought legal advice and advised Linda that an attorney appointed under an AHD has all the powers of an attorney appointed for health matters under an EPA. So we have our answer.