An Enduring Power of Attorney (EPOA), sometimes referred to as a “living will”, is a legal document that allows you to appoint someone you trust (the attorney) to make decisions on your behalf if you become unable to do so due to incapacity or illness.
The decisions you can appoint the Attorney to make include financial decisions and personal and health decisions.
The financial decisions an Attorney can make for you include signing documents, paying bills and other expenses, buying and selling property, making and managing investments.
The personal and health decisions an Attorney can make for you include where you live, health care decisions and medical decisions.
If you lose your capacity to handle your own affairs, and if you do not have an Enduring Power of Attorney, your loved ones can be left in a very difficult position. If you do not have an Attorney nominated for financial matters in some cases the Public Trustee will be appointed to manage your finances and make financial decisions for you. If you do not have an Attorney nominated for personal and health decisions in some cases the Public Guardian will be appointed to manage your health and personal circumstances and make those decisions for you.
Having an Enduring Power of Attorney in place gives peace of mind knowing that someone you chose will be able to make decisions that reflect your wishes and values, should something happen to you.
Our experienced team will draft your Enduring Power of Attorney to ensure that it meets your specific needs and circumstances and ensure you understand its implications fully.
What is an Enduring Power of Attorney (EPOA) and what does it mean?
An EPOA is a legal document that allows you to appoint someone you trust (your Attorney) to make financial and/or personal and healthcare decisions on your behalf. The personal and healthcare decisions can only be made by your Attorney if you become incapacitated. The financial decisions can be made by your Attorney at a time chosen by you, or only if you become incapacitated.
“Enduring” means the power you have granted to your Attorney to act on your behalf continues, even if you lose your legal capacity to handle your own affairs. For example, if you have appointed someone to act as your Attorney and you later suffer from a Alzheimers, once the condition impacts your capacity, your Attorney can still act on your behalf.
What are the responsibilities of an Attorney?
Your Attorney can generally do anything you can legally do yourself, so it is important that you choose wisely. For example, your Attorney can buy and sell land on your behalf, operate bank accounts and enter into contracts. Your Attorney must act in your best interests, avoid conflicts of interest, and manage your affairs prudently. They should also keep records of their actions.
Why should I have an Enduring Power of Attorney?
Because in an instant your circumstances might change rendering you incapable of making decisions for yourself and this is the document that allows you to choose who, in those circumstances will make the decisions for you.
If you lose your capacity to handle your own affairs, and if you do not have an Enduring Power of Attorney, your loved ones are left in a difficult position. Generally, they will need to make an application to the Queensland Civil and Administrative Tribunal (QCAT) for orders permitting them to manage your affairs. Sometimes your loved ones can’t agree on who should manage your affairs. Creating an EPOA ensures your affairs are managed by someone you chose in the event you do become unable to manage your affairs yourself.
What are the types of Power of Attorney?
There are two types of Power of Attorney:
General Power of Attorney
A General Power of Attorney provides for you to appoint an Attorney to manage financial and legal decisions while you have capacity. Once you lose capacity the power given by the General Power of Attorney document stops.
Enduring Power of Attorney
An Enduring Power of Attorney provides for you to appoint an Attorney to manage financial and legal decisions and also personal and health decisions, at a time nominated by you. Even if you lose capacity the power given by the Enduring Power of Attorney document continues.
What are the types of Enduring Power of Attorney?
Generally, there are two types of Enduring Power of Attorney, financial and personal or health.
Financial EPOA
Allowing an Attorney to have financial power authorises your Attorney to manage your financial and legal affairs, such as paying bills, managing bank accounts, buying or selling property, and making investments.
Personal and Health EPOA
Allowing an Attorney to have personal/health power authorises your Attorney to make personal and medical decisions on your behalf, including decisions about medical treatment and healthcare.
Our team can also assist with Advanced Health Directives
Does an Enduring Power of Attorney cover Medical Decisions?
Yes, but it must be specifically drafted for that purpose . Often your affairs need to be managed urgently, for example after a car accident, or after sudden onset of an illness. It takes time (and money) to make an application to QCAT. It is much easier and certainly more cost effective to pre-appoint an Attorney to manage your affairs in the event that you become ill or lose your legal capacity. It is also a much less stressful option for your loved ones.
Who can be my Attorney?
You can choose any adult (18 years or older) whom you trust to act in your best interests. This person should be responsible and willing to take on the role. They need to have capacity to make the decisions they are being appointed to make.
There are some restrictions on who you can appoint to be your Attorney. The restrictions include not being able to be an Attorney if:
- they are your paid carer, or have been your paid carer in the last 3 years (a paid carer is not someone who is receiving a carer’s pension or benefit);
- they are your health care provider;
- they are a service provider for a residential service where you live; and
- if they are bankrupt or taking advantage of bankruptcy laws (if appointed for financial matters).
Can I have more than one Attorney?
Yes, you can appoint multiple attorneys. If you appoint more than one Attorney you need to specify whether they should act jointly, separately, in a particular order, or in some other way.
When does an Enduring Power of Attorney come into effect?
For financial power, an EPOA can come into effect immediately upon signing or only when you become incapable of making decisions, depending on your personal circumstances and preferences. Our team can work with you to ensure the document is drafted to meet your wishes and needs.
For personal and health power, an EPOA only comes into effect when you have lost capacity to make those decisions for yourself.
Can I cancel, revoke or change an Enduring Power of Attorney?
If you wish to change, cancel or revoke an Enduring Power of Attorney, it is a very simple process. A Revocation of Enduring Power of Attorney needs to be signed by yourself and a copy must be provided to your Attorney giving them notice that they are no longer appointed as your Attorney. You can only revoke an Enduring Power of Attorney if you still understand what the nature and effect of the document is.
Contact our team if you need assistance with this.
How long does an Enduring Power of Attorney remain valid?
They are generally valid until you revoke them, die, make an inconsistent document, or they are cancelled by a court or tribunal.
Your Enduring Power of Attorney will be revoked if:
- you get married or enter into a civil partnership to the extent that it has given power to an Attorney who is not your spouse or civil partner; and
- you get divorced or your civil partnership is terminated to the extent that it has given power to a person who is no longer your spouse or not of civil partner.
The Enduring Power of Attorney may also be revoked if an Attorney dies, resigns, loses capacity, is declared bankrupt, becomes your paid carer or becomes your health care provider.
Is my Attorney accountable for their actions?
Yes, Attorneys can be held accountable for any misuse or neglect of their duties, and there may be legal sanction or recourse available.
What happens if I don't have an Enduring Power of Attorney and become incapacitated?
An application to the Queensland Civil and Administrative Tribunal (QCAT) can be made by anyone over 18 years old that is interested in your welfare. The application would seek orders permitting them to manage your affairs.
Without an EPOA your financial and legal affairs may be managed by the Public Trustee, and your personal and health affairs may be managed by the Public Guardian.
Can my EPOA be challenged in court?
In some cases, EPOAs can be challenged if there are concerns about their validity or the actions of the Attorney. Legal processes exist to address such issues and our team can assist with this.
What should I do if I want to create or update my Enduring Power of Attorney?
To create or update an EPOA, contact one of our experienced Wills and Estates Lawyers who can guide you through the process and ensure it reflects your wishes and complies with the law.
