Without a doubt, having an Enduring Power of Attorney is just as important as having a Will.
It is not uncommon for us to see a family in dispute in relation to the care and living arrangements of a loved one. However, if that loved one does not have an Enduring Power of Attorney, the situation is more complicated as there is no legal appointment of a person to manage their affairs. This means that no one is able to access that loved one’s bank accounts to pay bills, medical fees or coordinate their affairs generally.
This leads to the unfortunate, and perhaps inconvenient, need to apply to the Queensland Civil and Administration Tribunal (QCAT) for an order appointing someone to be the financial administrator for that loved one. There’s no doubt that this process can be intimidating, delayed and, not to mention, expensive.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document which allows you to appoint someone as your attorney, to make decisions on your behalf.
In Queensland, an Enduring Power of Attorney allows you to appoint someone to act on your behalf for:
- financial matters; and
- personal/health matters.
What is the difference between a General Power of Attorney and an Enduring Power of Attorney?
We are often asked what the difference is between a General Power of Attorney and an Enduring Power of Attorney. The key difference is that a General Power of Attorney ceases to be a valid document once the principal has lost capacity. This is in contrast to an Enduring Power of Attorney which continues to operate as a valid document even if the principal loses capacity.
If I sign an Enduring Power of Attorney, does that mean my attorney can do things for me immediately?
The answer in short is, no.
In relation to personal/health matters, an attorney will not be able to make decisions on your behalf until such time as you have lost capacity. Of course, if you have capacity to make your own personal/health decisions, then medical practitioners and health care workers will be taking instructions from you, directly.
However, if you are unable to make decisions for yourself, and this has been reported by your doctor/s, then your attorney will be able to step in for you.
In relation to financial matters, the proforma Enduring Power of Attorney document by Queensland Government allows you to pick and chose the times or occasions that your attorney can make decisions in relation to your financial matters. For example, if you are appointing you partner, husband or wife, you may be at ease with them making any financial decisions for you straight away, therefore, the appointment for financial matters can start immediately.
However, if you wish for your attorney to manage your financial affairs only once you have lost capacity, the document can be prepared to this effect.
How many attorneys am I able to appoint?
In Queensland, you are able to appoint up to four (4) attorneys. However, you can manipulate how those attorneys act.
For example, you might wish for your partner, husband or wife to be the first attorney and only where they are unable or unwilling to act, your three (3) children to act, as a majority. Alternatively, you may have four (4) attorneys that you might wish to act jointly (although consideration should be given to how practical this would be).
It should not be underestimated how powerful an Enduring Power of Attorney document is. It is crucial that you trust the person or people you chose to be your attorney/s, as they will be able to do for you, most things that you can do for yourself.