Written by: Ella Saurine
When planning out your future, it’s important to consider how your circumstances might change while you’re still alive. What happens if you lose capacity? Who will help pay the bills and make decisions for you if you’re unable? This is where a enduring power of attorney steps in.
An enduring power of attorney is a legal document appointing someone to act for you in relation to financial and personal health decisions.
How is an Enduring Power of Attorney Different from a Will?
An enduring power of attorney document gives someone the right to make decisions on your behalf if you lose capacity but are still alive.
A Will is a legal document outlining your intentions after you pass away.
Enduring Power of Attorney vs General Power of Attorney
Perhaps you’ve heard of a “general power of attorney” and are wondering if this is the same as an enduring power of attorney. Read below to learn the key differences:
1. Enduring Power of Attorney
An enduring power of attorney is an individual appointed to act on your behalf in relation to financial and personal health matters.
Whilst personal health power starts when you lose capacity, you can choose when the financial power commences.
Example
You may wish to give a partner immediate financial power, which will assist you with day to day financial matters. Or, you may wish to appoint an attorney, for example, a child, only when you lose capacity. This would mean you have control of your financials until it is deemed that you are unable to make decisions for yourself.
2. General Power of Attorney
A general power of attorney is appointed to act for you in relation to a particular matter.
Example
You appoint a general power of attorney to act for you during the sale of your home, as you’re unable to cope with dealing with the matter.
The general power of attorney comes to an end once that event is finalised. So, in this example, it would end when the property settlement is finalised.
How to Choose Your Power of Attorney
When choosing your attorney, you need to keep in mind that they can make decisions that would have the same legal effect as if you were making the decisions yourself.
For this reason, you must be sure that the attorney you appoint will make decisions that are best for you, rather than for themselves.
Requirements for Your Attorney
There are a few guidelines to keep in mind when you’re deciding on who to appoint as your attorney.
They must…
- Be over the age of eighteen years;
- Not be your paid carer;
- Not be your health care provider;
- Not be a service provider for residential services where you are a resident.
Can I Have More than One Attorney Appointed?
Yes, you can appoint more than one attorney under an enduring power of attorney in Queensland. Having more than one attorney can provide flexibility and oversight, but it is important to carefully consider who you appoint and how they are to act, to minimise the risk of disputes or practical difficulties in decision-making.
Can an Attorney Change My Will?
No, an attorney appointed under an enduring power of attorney cannot make, change, or revoke your Will. Your Will is a personal document that only you can make or alter while you have testamentary capacity.
Can An Enduring Power of Attorney Be Revoked?
Yes, you can revoke an enduring power of attorney at any time while you still have decision-making capacity. To do this, you can complete a formal revocation document.
What if I Don’t Have Someone I Can Trust?
You can choose to appoint a professional attorney, such as your solicitor or accountant, to serve as your attorney under your enduring power of attorney.
What to Expect When You Appoint a Solicitor as Your Attorney
When choosing to appoint a solicitor as your attorney, you can expect that they will:
- carefully consider the decisions that need to be made on your behalf;
- take your instructions with respect to your wishes regarding health care,
- allow you to make financial decisions whilst you still have capacity, and;
- ensure they make decisions you’d feel comfortable with.
What If I Don’t Appoint Anyone as My Attorney?
If you don’t have a properly executed EPA, no one will have the authority to make financial and personal/health decisions on your behalf in the event you are to lose capacity to make decisions for yourself.
Despite ongoing financial and personal needs, your family members will have no formal powers to access your bank accounts to pay your expenses, sell property to fund nursing/aged care facility fees, access disability, trauma and/or income protection insurance policies, and may be unable to make critical health decisions for you.
If these decisions need to be made, your loved ones will need to make an application to the Queensland Civil and Administrative Tribunal (QCAT) for an order to be appointed as your financial administrator and/or guardian. This can be expensive, complex and delayed.
If you don’t have an enduring power of attorney, we recommend you contact our office and arrange to speak to our Will lawyers regarding this important decision.
Disclaimer:
The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.
Greenhalgh Pickard’s Wills & Estates Team
