When considering your Estate planning, you need to consider your circumstances whilst you are still alive. What happens if you lose capacity? Who will help pay the bills and make decisions for you?
A Power of Attorney is a legal document appointing someone to act for you in relation to financial and personal health decisions.
There are several types of Powers of Attorney that you can make:
General Power of Attorney
This appoints an Attorney to act for you in relation to a particular matter – for example – you make a General Power of Attorney appointing someone to act for you in relation to the sale of your home as you are 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 case would end when the settlement of the property has been effected.
Enduring Power of Attorney
An Enduring Power of Attorney appoints an Attorney/s to act for you in relation to financial and personal health matters. Whilst personal health only commences when you lose capacity, you can choose when the financial power commences. For example, you may wish to give a partner immediate financial power, which will assist you day to day with your 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.
Choosing your 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 are appointing will make the decisions that are best for you, and will not use the Enduring Power of Attorney to benefit themselves.
Your attorneys must be:
1. Over the age of eighteen years;
2. Not by your paid carer;
3. Not be your health care provider;
4. Not be a service provider for residential services where you are a resident.
What if I don’t have someone whom I can trust?
You can choose to appoint a professional attorney, such as your solicitor or accountant.
When choosing to appoint a solicitor of our office as your Attorney, we will carefully consider the decisions that we need to make on your behalf, and take your instructions with respect to your wishes regarding health care and financial decisions whilst you still have capacity and to ensure that we are making decisions that you would feel comfortable with.
If you don’t make an Enduring Power of Attorney, then someone can apply to the Queensland Administrative Tribunal and have themselves appointed as your Attorney. You may end up with someone you do not trust handling your finances.
If you don’t have an Enduring Power of Attorney, we recommend you contact our office and arrange to speak to our staff regarding the importance of this.