If you are thinking ‘what is an enduring power of attorney?’ – don’t worry – you are not alone.
We estimate that at least 1 in 4 people we meet have never heard of an enduring power of attorney; let alone know what it is and if they need one.
So, What Is An Enduring Power Of Attorney?
An enduring power of attorney is a written legal document that gives another person (called your attorney) the authority to make the following decisions on your behalf if you lose mental capacity:
- financial decisions – such as paying your bills, selling or renting your home, using your income or assets to pay for your needs; and/or
- personal health decisions – such as where and who you live with, day-to-day issues like diet and dress, and whether to consent or refuse certain types of health care (such as an operation).
You can appoint more than one attorney and set clear guidelines, conditions or limits in relation to how and when your attorney can use their authority.
Ok, But Why Do I Need An Enduring Power Of Attorney?
What if you suddenly became seriously ill, unconscious or unable to communicate? You wouldn’t be able to make and express your own decisions.
By creating an enduring power of attorney, you have control over who you want to manage decisions for you, and how they make decisions, in the event you are unable to do so yourself.
Unfortunately, the loss of capacity can happen unexpectedly at any time in your life.
If you are over 18 and have capacity, you should have an enduring power of attorney.
What If I Don’t Have An Enduring Power Of Attorney?
There is legislation that automatically appoints a statutory health attorney to make decisions for you in the case of personal health decisions.
However, for financial decisions, formal authority is almost always needed. This would involve a relative or close friend applying to the Queensland Civil and Administrative Tribunal (QCAT) to seek authority to act on your behalf.
Disagreements can also arise between your relatives and friends as to who can decide for you and what will be decided. If a dispute cannot be resolved, then QCAT would again need to become involved.
Having an enduring power of attorney in place can not only ensure that you have control over your financial and personal health decisions; but can also reduce the chance of disputes arising.
Who Can Be My Attorney?
Find someone who you trust and is willing to take on the responsibility.
An attorney must:
be over 18;
not be your paid carer;
not be your health provider; and
not be a service provider for a residential service where you are resident.
For financial decisions, consider someone who is responsible with their own money and understands financial matters. The person you appoint must not be bankrupt.
For personal health decisions, consider relatives or close friends who understand your personal wishes and health care needs.
How Long Does An Enduring Power Of Attorney Last For?
You can cancel or change your enduring power of attorney at any time while you have capacity.
Other circumstances that can end your enduring power of attorney include:
creating a new enduring power of attorney.
Your enduring power of attorney may also end if your attorney:
becomes your paid carer or health-care provider; or
is bankrupt or insolvent.
We recommend that our clients review their enduring power of attorney every 3 years or if any of the above was to occur.
So, What Is The Process?
At Martens Legal an enduring power of attorney is one of the documents we prepare as part of our client’s estate plan. Please see our earlier post regarding our estate plan process.
Do You Want To Know More?
Please also visit our website to check out our fees guide.
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances.