A comment we often hear is that you shouldn’t worry about preparing an Enduring Power of Attorney until you’re elderly or your health deteriorates. Myth or reality?
For background, a person making the document (called “the Principal”) appoints one or more people (called “the Attorneys”) to make decisions on their behalf regarding personal, health and financial matters. Once prepared, an Enduring Power of Attorney is usually only used when the Principal is no longer able to manage their affairs or are unable to communicate freely.
Some common examples of the decisions made by Attorneys include:-
• Deciding what health care the Principal is to receive – including whether to terminate life support measures;
• Deciding where the Principal will live;
• Managing the Principal’s bank accounts; and
• Managing the Principal’s assets (e.g. house, car).
An Enduring Power of Attorney is a safeguard in case something unexpected happens to you, such as a motor vehicle or workplace accident or a medical emergency. If you do not have capacity or if you cannot communicate your decisions, then you cannot enter into an Enduring Power of Attorney. If you do not have an Enduring Power of Attorney, do you not have a ‘default’ Attorney at law. Your friends and family cannot prepare an Enduring Power of Attorney on your behalf.
If you need someone to make decisions when you’ve lost capacity, an application has to be made to appoint someone to makes these decisions to the Queensland Civil and Administrative Tribunal (“QCAT”). Obviously, you cannot control who QCAT ultimately appoint as your Attorney. If there is a dispute about who will act as your Attorney or if no one makes the application, then the Public Trustee/Adult Guardian may be appointed to manage your affairs.
An Enduring Power of Attorney is a separate document to a Will. A Will has no legal effect until the Will-maker passes away. Conversely, an Enduring Power of Attorney ceases to have effect upon the Principal’s death.
An Enduring Power of Attorney is a relatively inexpensive way to ensure that you control who manages your affairs in the event that you are unable to. We strongly recommend that you have one, no matter what your age, status or health.
If you need to prepare or update an Enduring Power of Attorney or a Will, contact us and we can arrange for an appointment with one of our experienced solicitors.
This post is general information only. It is not a substitute for legal advice from a lawyer. If you have a legal issue, you should always contact your lawyer to obtain advice that is relevant to your circumstances.