Firstly, what is an enduring power of attorney?
Unlike a Will, which protects your interests after you pass away an enduring power of attorney operates when you are alive, but you have lost capacity.
What is capacity?
Capacity is the understanding required to make decisions in a free and voluntary way, and being able to communicate these decisions. Not everyone has capacity at all times. Capacity can be fluid and you can regain capacity. For example, you may be incapacitated because of a concussion or coma and could regain this capacity. It is important to have someone you trust to make decisions for you if you don’t have capacity.
Do I need an enduring power of attorney?
An Enduring Power of Attorney appoints a person – known as your attorney – to make personal (including health) and financial decisions on your behalf. The purpose of an Enduring Power of Attorney is to set out specific details of when your attorneys can make decisions and what powers they have.
What are financial matters?
Financial matters include:
- Paying expenses
- Making investments
- Selling property (including your home)
- Carrying on a business
- Prepare tax returns.
What are personal (including health) matters?
Personal matters include:
- Support services
- Where and with whom you live
- Health care
- Legal matters that do not relate to your financial or property matters
When should I update my EPA?
Executing a new EPA revokes an older one. You should consider updating your EPA if the following circumstances have changed:
- You wish to change who retains control over financial and health decisions
- Your appointed attorneys have passed away or have lost decision making capacity themselves
You can only make an Enduring Power of Attorney whilst you have capacity. So, it is important to prepare one early, even if you never lose capacity.
What happens if I don’t have an EPA?
If you do not have a properly executed EPA, no one will have the authority to make financial and personal/health decisions on your behalf in the event you are to lose capacity to make decisions for yourself. Despite ongoing financial and personal needs, your family members will have no formal powers to access your bank accounts to pay your expenses, sell property to fund nursing/aged care facility fees, access disability, trauma and/or income protection insurance policies, and may be unable to make critical health decisions for you.
If these decisions need to be made, they will need to make an application to the Queensland Civil and Administrative Tribunal (QCAT) for an order to be appointed as your financial administrator and/or guardian. This can be expensive, complex and delayed.
Executing an EPA gives you peace of mind and assists your loved ones in the event you lose capacity to make decisions for yourself. There are several steps and requirements to be followed when putting an Enduring Power of Attorney in place. By engaging our team of Estate Planning Solicitors, we will draft your documents and assist with setting them in place.
Contact Greenhalgh Pickard today for a no obligation free estate planning consultation.
The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.
Greenhalgh Pickard’s Estates Team
