Brisbane’s Legal Lowdown: Enduring Powers of Attorney Explained

Sofie: It’s the start of a new segment that we’re going to do here on afternoons, the chance to hear an expert in the legal field give us some advice on lots of issues and particularly those that matter to us most in our city – Brisbane’s Legal Lowdown with Attwood Marshall Lawyers.

Joining me in the studio is Debbie Sage. Attwood Marshall Aged Care, Wills and Estates Partner. She’s also an Accredited Aged Care Professional, so she comes with a wealth of knowledge and experience in this space, so we’re going to dive into something that on the surface could sound a little dry, but trust me, it is one of the most important legal documents that you could ever put in place. We’re talking about enduring powers of attorney, and Debbie’s joining me in the studio.

Debbie: Hi.

Sofie: Welcome aboard.

Debbie: Thank you so much.

Sofie: Well, I know you’re going to make this interesting for us because it’s also a reminder of just how important it is that we consider an enduring power of attorney and that we don’t wait until one is required to either wish we had it in place or be desperately trying to organise it.

Debbie: Exactly.

Sofie: And is that what often happens?

Debbie: It does. Unfortunately, that’s where I get involved. A lot of the time is when there’s an emergency. They don’t have a power of attorney. There’s usually a dispute between family members as to what’s in the best interests, and there’s no one who’s legally appointed.

Sofie: So, if you have a question this afternoon for Debbie specifically about you or your issue, of course all of this advice is general in nature, but she is certainly here to answer them for you 133 882 or you can text 0499 880 882.

But maybe we should go back to the beginning, Debbie and sort of start with reminding everybody what is an enduring power of attorney and when do you need to consider having one?

Debbie: So, an enduring power of attorney is a legal document which allows you to appoint one or more people to act on your behalf should something happen and you’re unable or unwilling to make that decision or carry out those tasks yourself.

Usually, it’s in the event of injury, illness or incapacity.

Now they can make decisions in relation to your financial matters. So, things like accessing your bank accounts, paying your bills, liaising with my aged care or Centrelink on your behalf, for example, and then they can also make decisions in relation to your personal health and lifestyle decisions.

So, deciding where you live, what healthcare you receive, consenting to medical or dental treatment, but then also refusing consent on your behalf, in accordance with your direction, so it’s a very powerful legal document.

Sofie: And should every adult consider having one?

Debbie: Absolutely. It’s a great contingency plan because it allows you to have a choice as to who you want to represent, you to advocate.

Sofie: And you know from what age, because a lot of people would probably think, well, I don’t kind of need to have one until I’m getting to the point where some of those things you outlined would be an issue.

But the reality is that we are all at risk at any moment of being involved in an accident or having something happen that takes that ability for us to make our own decisions away.

Debbie: Exactly. So, I would say from 18 onwards.

Sofie: Wow.

Debbie: Because you’re an adult, so you’re no longer under a guardianship of a parent, for example. So as soon as you become an adult, you then have the ability to make those decisions by yourself. And if something happens and we don’t know what the future holds, you know, if you end up in an accident or an injury or incapacitated, that is usually very sudden and unexpected.

So, you want to make sure that there is someone there that can make decisions on your behalf rather than the decision being made for you because it’s usually will then go to the government if there’s no one properly appointed.

Sofie: I was going to ask that, what happens if you don’t have one? What are some of the consequences that you could face or have your family face on your behalf if you don’t have one in place?

Debbie: So, a lot of the time, you know your next of kin role will only take you so far in the community now, so they’re not going to be able to access bank accounts. They’re not going to be able to make decisions on your behalf, especially where you live or medical, you know those serious treatments.

So that’s where we would need to make an application to the Queensland Civil and Administrative Tribunal, and you would need to make an application for a financial manager. So that’s for your finances. And for a guardian, and that’s for your personal health and lifestyle decisions. So, there’s two separate applications you would need to make. And there’s no guarantee. So, it’s up to the tribunal as to who they’re going to appoint.

And a lot of the time when there are disputes between interested parties, usually it’s adult children, a spouse, de facto, etcetera. Normally they will take the decision away from the family members and give it to the government, to the public trustee or the adult guardian.

Sofie: And you’ve seen this happen?

Debbie: Absolutely, all the time.

Sofie: And is there a difference between what we’re talking about, the enduring power of attorney and then one that’s just for medical issues?

Debbie: So, the power of attorney can be, you can decide.

Sofie: Okay.

Debbie: So, there’s a long form and there’s a short form in Queensland so you can decide if you want to tick a box for your attorney to only make decisions in relation to financial matters, and you can say whether that’s immediate. So that’s at your direction. That’s what my mum has for me, for example, to help her with bills and things, or you can do on loss of capacity. And that would need a medical certificate attached.  

With personal health and lifestyle decisions, you must have lost capacity, whether that’s temporarily or permanently, for someone to make that decision on your behalf. And that’s another box that you can tick.

Sofie: So that brings me to a question that’s come through from a listener and it doesn’t have a name on it, but it says enduring power of attorney, if there are two enduring power of attorney, but one is losing capacity, at what point are they then forced to give their enduring power of attorney up? So, it must be the two people who have been appointed, but one of them is facing capacity issues by the sound of things.

Debbie: Right. So, in that case, what would normally happen is it depends on what’s contained in the document. So, let’s say they may be appointed jointly, which means everything must be made together and the decisions made together, or maybe they’re appointed severally, which means either one of them can make decisions for you.

Now with that document, if you think that one of those attorneys has lost capacity, then you would need a medical certificate to confirm that in order for that person to no longer take part in the decision-making process for you.

Sofie: There’s also, I think the complication and we hear about this way too often, particularly as people age and there’s an idea that people might use an enduring power of attorney to manipulate the relationship, be able to control the estate. How do you ensure that you’re protected from that? Or is it very difficult to do that?

Debbie: Well, no, in my view, I think the best way you could do that is to regularly review your power of attorney document to make sure that it’s working best for you, but also getting the appropriate legal advice so that your document is tailored for your individual needs, wishes and preferences, because that’s usually where things go wrong.

Sofie: I’d love you to share with me and the listeners maybe a real life example of when someone faced a significant challenge because there was no enduring power of attorney in place. Like, what’s the real-world application that you have seen of somebody not bothering or not realising that this would be an important document?

Debbie: Well, I’ve got so many, but the first one that comes to me is a husband and wife situation where they were married for 50 years, didn’t even think they needed it because everything was jointly owned. They were living together. The wife became really unwell. The husband was looking after her as a carer, but then it got to a point where she really needed clinical help and so he contacted my aged care. My aged care would not deal with him needed to speak to her. She was so incapacitated and so unwell that she couldn’t communicate. So, my aged care would not arrange an assessment because they couldn’t take instructions from her.

So, we had to make an urgent application to the Queensland Civil and Administrative Tribunal for a guardianship application under an urgent interim order because she was suffering from self-neglect, she didn’t understand herself that she needed more help.

Sofie: I’ve mentioned this a few times and I don’t want to seem like a broken record, but I think these are the issues that we are only beginning to catch up with because we now have an ageing population and many of us because of the advances that we have in medicine are living longer than maybe you know in the past you might have under the same sort of circumstances. And we know that issues of, you know, mental health and degenerative diseases mean that these kinds of things seem to be more prevalent than they ever have in generations before.

Debbie: Absolutely.

Sofie: To the phones, Russell’s joining us from Capalaba and has a question for you. Go ahead, Russell.

Russell (listener): Thanks, Sofie. Yeah, good on you. Yeah. To the lady. Yes. I made a Will back in 2001actually. I’ve left my entire estate and everything to the Salvation Army. Right. I’m estranged from my family. I haven’t seen any of them. From my children to my ex-wife for well over 35 years and I’m just wondering how does the Salvation Army know that and I don’t plan on it, I’m going to live another 10 years, but how does the Salvation Army know that someone has passed without checking or something like this that I can rest assured that they’re the executor of my will and I’ve left that to them that that my will is going to be enacted upon.

Sofie: So, your wishes. Thanks, Russell. Go ahead, Debbie.

Debbie: Hi, Russell. So I do a lot with the Salvation Army. So what I would recommend doing is contacting the Salvation Army and letting them know that you have appointed them as the executor. You would even if you want to give them the original will. So, I know that they do have the ability to hold your original will. They have their head office now down in Melbourne and so you could arrange with them for them to hold your original will, or at least let them know where to contact in the event of your passing. I would also stay in touch with your local Salvation Army officers because they’ll usually like to check in with you from time to time.

Sofie: Yeah, I think, Russell, you can just make sure the right people have the information and Debbie, just another one, Ross wants to know, does having an existing will, Is that enough? Do I just get a power of attorney added to that?

Debbie: So, your will is part of your estate plan. So, when you hear people talk about estate planning, that’s your will and enduring power of attorney. So, you’re looking into making preparations for the event of your death, incapacity, illness or injury. So, your will is only going to come into effect when you pass away.

Sofie: And how often should somebody look at it and see whether or not it needs to be reviewed or updated?

Debbie: In my view it should be every three years, maybe even earlier than that if you are ageing and you find that you are becoming more and more unwell in any particular way because your needs may change, so that’s why tailoring the power of attorney document is so important to ensure that your wishes are upheld.

Because what if you want to stay at home for as long as possible? That putting you in an aged care facility is the absolute last resort. How is your attorney going to know that unless we put that in the document, your attorney would need the authority to use your resources, your financial resources to the extent that’s necessary. Which might mean that it will diminish your estate, so they need the consent to do that and it should be in writing to allow your attorney to make those choices for you.

Sofie: Legal matters usually scare people because you think it’s going to be expensive. Is having a power of attorney document put together in the way that you’ve been talking about an investment that people should be making?

Debbie: Absolutely. It’s like $440 to $550 on average, I think around, you know. And it’s well-costed, I think in my view, because you’re getting the proper legal advice, you know, if you do this document yourself, a lot of the time what we see is that it’s not properly drafted. There are no provisions in there that are tailored to your individual circumstances and your wishes and preferences, and that’s where it becomes costly in the end when there’s disputes or your attorneys not acting according to your wishes.

Sofie: Yes, sometimes it’s better to have a little bit of foresight rather than doing catch up. And that’s the reason why we’ll be doing this segment regularly here on 4BC Afternoons. Debbie, thank you so much for sharing your expertise.

Debbie: Thank you so much.

Sofie: That is Debbie Sage. She’s from Attwood Marshall Lawyers, and she works in their aged care, wills and estates area as a partner and as I said, they’ve jumped on board now here with afternoons. It means that questions in the future you’ll be able to send to us in anticipation and we’ll look forward to welcoming Attwood Marshall Lawyers back on to the program for our Brisbane’s legal lowdown. Thanks Debbie.

Debbie: Thank you.