Everyone Needs an Enduring Power of Attorney
Understanding the terms of the trust: The trust deed sets out the terms of the trust, including the purpose of the trust, who the beneficiaries are, and how the trust’s assets
While many are familiar with the importance of a Will, an Enduring Power of Attorney (‘EPOA’) is equally as important. Unlike a Will, which only takes effect upon your death, an EPOA ensures your interests are protected while you are still alive.
What is an Enduring Power of Attorney?
An EPOA is a legal document that allows you to appoint one or more trusted individuals (your attorneys) to make decisions on your behalf if you are unable to do so yourself. These decisions can relate to:
Financial matters, such as managing your bank accounts, investments, and property.
Personal and health matters, such as consenting to medical treatment or deciding where you live.
You can tailor your EPOA to your needs. Some of the things you can do are:
Assign different individuals to handle specific tasks, such as one for financial matters and another for personal or health decisions;
Designate backup people to step in if your primary choice is unavailable;
Limit their authority to make decisions or require them to consult others before acting; or
Specify when the EPOA comes into effect, for example: immediately, upon your incapacity, during travel or whatever you need.
What happens if you don’t have one?
If you lose capacity—due to unconsciousness, a stroke, dementia, or another condition—and you have not enacted an EPOA, no one will have the legal authority to manage your finances, pay your bills, or make decisions about your care.
Once you lose capacity, you cannot establish or modify an EPOA.
In such situations, your family or friends must apply to the Queensland Civil and Administrative Tribunal (‘QCAT’) to be appointed as your guardian (for personal matters) and/or administrator (for financial matters).
This process is costly, time-consuming, and emotionally draining, and there is no guarantee that the person QCAT appoints will be the one you would have chosen.
Therefore, your family or friends are applying to QCAT to be given the same powers an Enduring Power of Attorney would have granted.
Additionally, QCAT may appoint the Public Trustee of Queensland to manage your personal and health matters and financial affairs if no suitable private individual is available or willing to take on these roles. This means strangers would be making critical decisions about your life.
Who can be your Attorney?
You can appoint anyone you trust, if they meet the following criteria:
over 18;
have legal capacity;
have not been your paid carer in the past 3 years (a paid carer is someone who receives a fee or wage to care for you, but not someone receiving a carer’s pension or benefit);
are not your healthcare provider;
are not a service provider for a residential service where you live; and
are not bankrupt
This means you can appoint a trusted family member, friend, or professional like a solicitor or accountant.
When choosing who you wish to appoint, the most critical consideration is trust. Despite the statutory safeguards in place, the person you appoint will have significant authority over your personal, health and financial affairs. Therefore, it is essential to select someone in whom you have complete trust and confidence.
Ensure your Enduring Power of Attorney is Valid
While you can prepare your own EPOA, problems arise when such documents are not completed or witnessed correctly resulting in the EPOA being invalid.
In addition, changes in your circumstances can result in your EPOA becoming invalid.
Significant life events like getting married, entering a de facto relationship, getting divorced or ending a de facto relationship— may revoke your current EPOA, rendering it invalid.
Unfortunately, an EPOA is often only discovered to be invalid when your appointed person goes to use it. This means if you no longer have capacity, the person you thought was appointed is forced to apply to QCAT to obtain the same authority, a correctly executed and current EPOA would have provided.
Therefore, it is recommended that you engage a solicitor to review your EPOA to ensure that has been correctly executed and to review and update your EPOA whenever significant changes occur in your life.
Get Peace of Mind
Want to know how this might affect you or how to get started with creating a new EPOA? Call us on 5445 1213 to schedule your free, no-obligation 15-minute phone consultation. Just mention
this article when you call!
Johanne Viavattene, one of the many skilled solicitors at Cameron Rogers & Co Solicitors, is always happy to use her comprehensive legal knowledge to assist clients with estate planning,
estate management, and a wide range of other legal matters.