Whenever our clients prepare their Wills we also discuss with them the appropriateness of also preparing an Enduring Power of Attorney document to cover circumstances where, although they are still alive, they may have lost capacity for some medical or other reason.
In preparing the Enduring Power of Attorney, various choices are made around the persons who will be appointed as attorneys, how they are to act and when their appointment commences.
Once the main issues are resolved, another key question we are often asked is whether an Enduring Power of Attorney should be registered. The usual answer to that question is that while it is not necessary to register the Enduring Power of Attorney at the time it is prepared, in cases where property transactions are contemplated, registration can occur at a later date.
For example, where a client prepares an Enduring Power of Attorney and then, some years later, loses capacity and has to move to a residential care facility, it may be necessary for that person’s house to be sold. Under the Enduring Power of Attorney document it is usually appropriate for attorneys to sell a house but to complete that sale, it is also necessary for the Enduring Power of Attorney to be registered with the Titles Office. Because registration can usually occur at any time after the Enduring Power of Attorney document has been prepared and signed, it is quite appropriate to register that document only when the need arises.
Even if no property transactions are likely to be necessary, it is still important that the Enduring Power of Attorney document (along with the Will and other associated documents) is held in a secure safe custody facility so that, when it comes time to action that document, it can be retrieved and used. Our firm, like many others, offers a secure safe custody facility for that purpose. In addition, and given the nature of an Enduring Power of Attorney, holding the document in safe custody can also protect against misuse prior to the date when it is intended to commence.
We encourage all of our clients to consider whether registration of an Enduring Power of Attorney is appropriate at any given time but also to provide for that possibility in future by securing the document and ensuring that it can be registered when the time comes.
For more information or to discuss, please phone Kennedy Spanner Lawyers on (07) 4639 2944.