Enduring Power Of Attorney
“A loss of capacity can happen at anytime in a person’s life.”
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document outlining who you would like to manage your affairs, generally when you lose the capacity to do so. People can lose capacity for decision making for reasons such as intellectual or psychiatric disability, acquired brain injury, dementia or temporary illness such as delirium.
Who should make an Enduring Power of Attorney?
An Enduring Power of Attorney is an essential estate planning document, for anyone over the age of 18 years. Losing capacity does not only happen to people who are ageing. A loss of capacity can happen at any time in a person’s life and this loss may be temporary or permanent.
If you are over 18 and have capacity to understand the nature and the effect of the power you are giving an Attorney, it is important you plan for your future by making an Enduring Power of Attorney.
To make an Enduring Power of Attorney you must be an adult capable of making your own personal and financial decisions. You need to be able to:
- understand the nature and effect of a decision
- freely and voluntarily make those decisions; and
- communicate the decisions in some way.
What is an Attorney?
An Attorney is the person you nominate to manage your affairs. You can have more than one Attorney. Attorneys can be appointed to manage your financial matters and/or your personal and health matters.
You can specify when your Attorney’s powers begin and you can also specify what powers they will have.
What does an Attorney for financial matters take care of?
A financial Attorney can perform a range of duties such as:
- ensuring your bills are paid
- preparing your tax returns
- managing your investments.
What does an Attorney for personal and health matters take care of?
An Attorney for personal matters can attend to things such as:
- where you will live
- who you will live with
- your recreational activities.
An Attorney for health matters can attend to certain medical decisions, treatment options and medicines.
An Attorney is accountable
An Attorney is personally accountable for their actions. If your Attorney mismanages your affairs whether deliberately or by negligence, they can be held liable for their actions. This can include facing court proceedings to recover money and even criminal charges.
The Public Guardian has powers to investigate complaints if somebody with an Enduring Power of Attorney, for financial, health or personal matters is alleged to have acted improperly.
Managing risk – Attorneys have been known to mismanage finances
There have been many instances of family or friends mismanaging their role as Attorney. This can include selling a person’s assets and retaining the money for themselves and/or transferring ownership of assets into their own names.
When investigated, common responses are ‘Mum wanted us to have the money’, ‘Dad doesn’t need the money and we do’, and ‘The money is not doing them any good in the nursing home and we have a mortgage to pay’.
Experience shows these types of reasons are generally not accepted by the Queensland Civil and Administrative Tribunal and may result in legal action against the Attorney to recoup money on behalf of the person with incapacity.
An Attorney should seek legal advice regarding financial decisions they intend to make.
Making an Enduring Power of Attorney with Elliott & Harvey
For more than 45 years, Elliott & Harvey has assisted clients to make their Enduring Power of Attorney for a competitive fee.
We will guide you through the process from start to finish.