Enduring Power of Attorney
What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPOA) is a separate legal document from your Will. It appoints someone (known as your Attorney) to make decisions on your behalf in the event that you are incapacitated or are unable to make decisions for yourself. The enduring nature of an EPOA means that it continues in the event you lose capacity to make decisions for yourself.
You can appoint your Attorney in two ways. To handle your financial matters, to handle your personal health matters or to handle both (recommended). You can appoint more than one Attorney and decide on the way in which you wish to appoint your Attorney and how they are to make your decisions.
For example, a husband may wish to appoint his wife as his Attorney for financial and personal health matters in the first instance but should the wife be unwilling or unable to act for any reason (for example, she has died before him or they are both seriously injured in the same car accident) then their children may be appointed as the parent's back up Attorneys.
You can also appoint different persons to handle financial matters and personal/health matters.
When does your Enduring Power of Attorney begin?
You can nominate when your Attorney’s power for financial matters begins. For example, you may wish for it to begin immediately upon you signing the EPOA or at a nominated date (for example, if you were travelling overseas) or not until a specified occasion, such as when you were certified by a medical practitioner in being incapable of handling your own financial affairs.
However your Attorney’s power regarding your personal/health matters begins only when you are incapable of making those decisions for yourself. For example, in the event of you having a stroke, heart attack or in the case of alzheimers and dementia victims.
What are my Attorney’s roles and responsibilities?
Your Attorney has a number of roles and responsibilities governed by the Queensland Powers of Attorney Act 1998. Some of those duties include:
- Acting in your best interests;
- Being accountable and keeping records of all monies spent on your behalf;
- To avoid any conflict transactions between you as the Principal and them as your Attorney;
- Acting in good faith, honesty and due care;
- Considering your existing relationships, values and culture and acknowledging your right to confidentiality; and
- Respecting any of your wishes or written instructions made when you had capacity;
What are personal/health matters?
- Personal matters, as the name suggests, involves your Attorney making decisions on your behalf as to where you should live taking into consideration your personal circumstances.
- Health matters generally deal with your healthcare and medical treatment. A diligent Attorney will always consult your medical practitioner in order to make informed decisions about your health matters.
Your Attorney also has the power to withdraw or withhold life sustaining medical treatment if, respecting your views and wishes, you become terminal or are unable to communicate your wishes, for example, you are in a coma or unconscious.
If you wish to specify how your medical treatment is to be prescribed to you in the event you are in a coma, permanent or persistent vegetative state, then you should make an Advanced Health Directive (AHD). An AHD are your written instructions as to how you wish your life sustaining medical treatment is to be dispensed.
What if I do not have an Enduring Power of Attorney?
We strongly recommend that you prepare your EPOA as part of your Estate Planning review. The consequences of not having an EPOA can be overarching because decisions may have to be made in your best interest by persons who you would not otherwise appoint.
For example, if there is no immediate relative to handle your financial or personal affairs or if family members are in dispute as to who should handle the affairs, then the Guardian and Administration Tribunal (GAAT) decides the appointment of your Attorney (known as your Administrator). Where agreement cannot be reached by family members, the GAAT may appoint the Public Trustee to handle your financial affairs and the Adult Guardian, both Government Departments, to handle your personal/health affairs on your behalf. This predicament is easily overcome by preparing even a simple EPOA.
Potentially there are significant costs involved in an application to GAAT and the appointment of the Public Trustee or Adult Guardian which are easily overcome by preparing an EPOA at the appropriate time.
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Will & Estate News
See attached news articles by OMB for more information and recent developments in this area of law: