An important part of planning for the future, involves having an up-to-date Enduring Power of Attorney.
To avoid confusion it is important to point out that an Enduring Power of Attorney does not relate to the term “Attorney” that is commonly used in the USA and some other countries to refer to a legal professional. In Australia, an Enduring Power of Attorney is an important legal document in which you can appoint one or more attorneys. Attorneys are people that you can appoint to make decisions on your behalf in relation to financial, personal and health matters if you lose the capacity to make those decisions for yourself.
Why should you make an Enduring Power of Attorney?
A loss of decision-making capacity can occur at any time during a person’s life and can be temporary or permanent (for example, as a result of a sudden illness or injury, or an ageing related condition such as dementia).
If you lose decision-making capacity and you do not have a valid Enduring Power of Attorney, there may be nobody in your life with the legal authority to make decisions about financial and personal matters on your behalf.
If this happens an application may need to be made for the appointment of an administrator to make decisions on your behalf in relation to financial matters, and/or a guardian to make decisions on your behalf in relation to your personal and health matters.
Not having a valid Enduring Powers of Attorney can lead to a range of problems if you lose capacity, including:
- Decisions may not be able to be made in relation to financial, personal and health matters until an administrator and/or guardian has been formally appointed by a tribunal or a court.
- You will not get to choose who administers your financial, personal and health affairs.
- Your loved ones may be subjected to an additional burden at a time of stress and anxiety.
- There may be disagreement or conflict between your loved ones as a result of the lack of clear written provisions about your wishes.
Any person over the age of 18 years who has the capacity to do so can – and should – make an Enduring Power of Attorney. An Enduring Power of Attorney is the only reliable means
of ensuring that your affairs will be managed by someone of your choice if you lose decision-making capacity.
What decisions can your Attorney make on your behalf?
In an Enduring Power of Attorney you can empower your attorney to make decisions on your behalf in relation to most matters on which you could lawfully make a decision for yourself. In your Enduring Power of Attorney you can specify that your attorney has power to make decisions on your behalf in relation to:
- financial matters – for example, paying your bills, preparing tax returns, and managing your investments; and/or
- personal and health matters – for example, where you live, day-to-day decisions about your diet, dress and participation in activities, and medical and dental treatment.
However, your attorney cannot:
- make or revoke a Will for you
- make or revoke an Enduring Power of Attorney or an Advance Health Directive for you
- vote in any government election for you
- make decisions about the adoption of a child of yours
- make decisions about marriage or entry into a registered relationship, or the termination of a registered relationship, on your behalf
- make decisions about a surrogacy arrangement on your behalf; or
- make decisions about “special health matters” for you.
Can you appoint more than one attorney?
You can appoint more than one attorney in your Enduring Power of Attorney. If you do so, then you can also specify how they are to make decisions – for example:
- jointly – that is, the attorneys must all agree on all decisions
- severally – that is, any one attorney can make a decision, although he/she has a duty to consult with each other attorney
- by majority – for example, if you appoint three attorneys, you could authorise them to act by a two-thirds majority, or
- successively – that is, the first-named attorney makes decisions, but if he or she cannot act then the second-named attorney makes decisions, and so on.
If you wish, you can also appoint attorneys to make financial decisions on your behalf, and different attorneys to make personal and health decisions on your behalf.
Who should you appoint as your attorney?
The law imposes a range of strict duties on attorneys. Being an attorney is an important job that requires a sound knowledge of law, accounting, taxation and business practices, as well as good communication skills and diplomacy.
When considering whom to appoint as your attorney/s, it is important to consider:
- if they will be able and willing to act, having regard to their age, health, experience and the fact that they may be experiencing stress and anxiety if you become incapacitated unexpectedly
- if they are knowledgeable, trustworthy, reliable and impartial and
- if there is any potential for conflict between the attorney/s and others.
It is important to be aware that your attorney/s will be at risk of personal liability for their actions and omissions in administering your affairs.
It is not just deliberate wrong-doing that exposes an attorney to the risk of personal liability – such personal liability can also arise as a result of inexperience or inattention.
For example, if an attorney forgets to insure your assets, then he or she could be personally liable if assets are lost, stolen, damaged or destroyed.
How to make an Enduring Power of Attorney
Enduring Powers of Attorney are an investment in your future should the unforeseen happen. It’s easy to make your Enduring Power of Attorney, simply contact your local Public Trustee Office or lawyer and make an appointment.
Want to know more about how Queensland’s Public Trustee can help you plan for your future?
We can help you to make your Will and Enduring Power of Attorney
The Public Trustee has been serving Queenslanders since 1916. The Public Trustee delivers a range of specialist services to the Queensland community, including:
- preparation of Wills and Enduring Powers of Attorney
- administration of deceased estates
- financial administration services for people with a decision-making incapacity
- trustee services for private trusts and charitable trusts.
The Public Trustee provides the largest Will preparation service in Queensland, preparing over 25,000 Wills for Queenslanders each year.
The Public Trustee can also prepare your Enduring Power of Attorney for a modest fee.
No fee is payable if the Public Trustee of Queensland is appointed as sole or primary attorney for financial matters in the Enduring Power of Attorney.
You can make an appointment with the Public Trustee to make a Will and/or an Enduring Power of Attorney at one of its 16 regional offices around Queensland.
If you do not live close to one of these offices, the Public Trustee provides a range of outreach services across Queensland, through courthouses, Centrelink offices and the Queensland Government Agency Program.
For more information about Wills and Enduring Powers of Attorney, or to make an appointment, please contact the Public Trustee by phone 1300 360 044, by email email@example.com or visit the website www.pt.qld.gov.au