With over half the population without a valid Will, and even more people without an Enduring Power of Attorney (EPOA) in place, it’s important to discuss exactly why these documents are so important and what you need to consider when appointing an Attorney, explains Attwood Marshall Lawyers Wills and Estates Lawyer, Natalie Comerford.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document that gives another person permission to act and make decisions on your behalf. Those decisions can be of a financial nature such as preparing a tax return, operating your bank accounts, selling your home, taking out a lease or voting at meetings – just to name a few.
An Enduring Power of Attorney can also make decisions related to health and personal matters if you lack the capacity to make those decisions for yourself.
The type of health decisions that may be made under an Enduring Power of Attorney include:
- Consent to give medication;
- Refusal of medication;
- Decide where you live;
- Decide what other types of health services you receive.
Many people struggle to understand what these documents achieve and why they are needed in the first place. It can be helpful to think of an Enduring Power of Attorney like a driver’s license. A driver’s license is essentially a document (or card) that gives you permission to drive on roads. Without the licence you would not be permitted to drive. If you do not have a licence and are caught driving, you can get yourself in quite a bit of trouble. The Enduring Power of Attorney is similar in the sense that it is a document that shows others that you have permission to act on behalf of another person and make their decisions for them when they are not present or capable of making their own decisions.
If you do not have an Enduring Power of Attorney, can your family members still step in and take over?
This is a problem that we face quite often. In order to put an Enduring Power of Attorney in place you need to be over 18 years old, have the capacity to understand the nature and the effect of the power that you are giving another person and execute the document freely and voluntarily.
It is a common misconception that your family are able to just step in and take over automatically in the event that you lose capacity or cannot make decisions for yourself. If you missed the opportunity to put an EPOA in place, then your family will need to make an application to the State Administrative Tribunal, in Queensland that would be the Queensland Civil and Administrative Tribunal (QCAT) and in New South Wales it is NSW Civil and Administrative Tribunal (NCAT). This process takes time and can be very costly.
Do not try to create an Enduring Power of Attorney without legal assistance
An Enduring Power of Attorney is one of the most crucial and powerful documents you can create in your lifetime.
An experienced lawyer can help you understand possible outcomes that can occur when you give someone power over your financial, personal and health decisions.
A Wills and Estates Lawyer can word these documents in a way that determines how decisions are made and put any checks and balances in place that would be beneficial to ensure that the person you appoint as your attorney will make decisions in line with your best interests.
Just like do-it-yourself Will Kits, Enduring Power of Attorney documents are available online, however if you choose to execute these documents yourself, you need to understand the significant risks involved.
We are often approached by clients who have found themselves in a bit of a pickle after trying to create a DIY Enduring Power of Attorney document. A common scenario we see is where a person has been advised by doctors to put an Enduring Power of Attorney in place for their elderly parent. They jump onto the Government’s website, download the form and fill it out, feeling satisfied that all their legal affairs are in order.
As the story goes, the time comes when their parent loses capacity and requires a higher level of care. Their parent’s house needs to be sold and the parent cannot do it for themselves having lost capacity. The client goes to use the Enduring Power of Attorney only to discover it has been incorrectly executed and is not valid.
At this stage, the opportunity has been lost and the attorney must face the application process to be appointed by QCAT, if they are in Queensland, or NCAT in New South Wales, to the role. At the end of the day this will mean a significant delay and unexpected expense before anyone can move forward.
What happens if you change your mind after appointing an Enduring Power of Attorney?
If you have capacity, you can revoke your appointment and put a new Enduring Power of Attorney in place at any time. We see this often where someone has appointed a good friend many years ago, their circumstances change, and they no longer want to give that person the same level of power.
When revoking an Enduring Power of Attorney, you will need to inform the original attorney and all other relevant people and agencies.
If you want to revoke your Enduring Power of Attorney appointment, it is imperative that you seek legal advice as soon as possible to ensure your current documents always reflect your wishes.
What happens if you appoint the wrong person?
If you appoint the wrong person the list is almost endless as to what could go wrong.
You are giving someone complete control over your finances, medical decisions, property and living arrangements. You need to ensure who you give this power to is someone who will make the same decisions you would make for yourself. An EPOA is all about protecting your best interests and ensuring your unique values and wishes are considered and granted by your attorney.
If you separate or divorce from your partner who you have appointed as your attorney, it is important to remember that separation and divorce will not affect the validity of an Enduring Power of Attorney and you will need to revoke these appointments and create a new EPOA to ensure they reflect your wishes.
Not everyone has family or close friends they can entrust this power to. For some people, they choose to appoint a professional, such as their solicitor, to act either jointly or separately as their attorney.
We want you to have peace of mind
Attwood Marshall Lawyers understands exactly what is required to execute Enduring Power of Attorney documents so that they are valid and properly witnessed and signed. It’s imperative to ensure there is no ambiguity within these documents to reduce the risk of family disputes or arguments come the time the document comes into effect.
As a leading estate planning firm, Attwood Marshall Lawyers take a holistic approach to your estate planning needs. Your documents will be prepared by an experienced lawyer who practices exclusively in the area of Wills and Estate Planning.