Many people assume getting a Will in place is the only aspect to consider when getting their estate planning affairs in order.

However, do you ever think about what happens if you suddenly find yourself in a situation where you cannot make financial or personal/health decisions yourself, whilst you are still alive?

This is where an Enduring Power of Attorney can help.

WHAT is an Enduring Power of Attorney?

A General Power of Attorney allows someone to make decisions if you are unable to make them for a period of time – provided you still have capacity to make those decisions.

An Enduring Power of Attorney (EPA) on the other hand, differs in that it operates if and when you do not have the capacity to make decisions.

An EPA gives the person you nominate the power to make decisions on your behalf. In Queensland, it can apply to:

1. financial matters (these powers include accessing bank accounts, selling property and coordinating taxation and legal affairs); and  
2. personal (including health) matters (these powers include making decisions for you and your lifestyle, such as your accommodation, personal services and medical treatment).

WHY have an EPA?

Having an EPA in place gives you the comfort of knowing that if something does happen to you, someone you trust has the legal authority to make the decisions that need to be made.

Under and EPA, you can nominate:

1. who can make these decisions;
2. your views, wishes or preferences;
3. what decisions can be made;
4. what should be considered in making any particular decisions;
5. any limitations to making decisions; and
6. who else must be notified when an attorney starts making decisions on your behalf.

WHO should be my EPA?

Should they need to exercise their authority, an EPA will end up being an important part of your life. The person you appoint should be someone you trust absolutely. Your attorney must always act in your best interests and within the scope of their authority, and you should have confidence that they will understand these obligations.

It is very important to think carefully about your choice of attorney. Whoever you appoint, will make important decisions for you. Therefore, it is essential you appoint someone who you believe understands your wishes and has the skills to manage your financial and legal affairs according to those wishes.

You may decide to appoint more than one attorney. In Queensland, you are able to appoint up to four attorneys. If you do, you can prescribe how they will work together (e.g. jointly, severally, as a majority).

WHEN should I appoint an EPA?

You can prepare your EPA at any time whilst you still have capacity and indicate when you would like the authority to commence.

This may be from:

1. the time the attorney has accepted their appointment (i.e immediately); or
2. when a medical practitioner considers that you are no longer able to manage your affairs (i.e. only upon your loss of capacity).

An EPA stops operating when you die. From this point forward, the executor of your Will takes on all responsibilities associated with your estate.

You can revoke your EPA if, for some reason, you no longer believe your attorney is acting according to your wishes or if you wish to appoint someone else. You can do this at any time, in writing, as long as you have the capacity to do so.

Where it is deemed that you have lost capacity to make your own decisions, your EPA will continue to operate.

That is why is it important to have your EPA completed and signed before you lose capacity. Otherwise, your loved ones will be faced with a lengthy and costly process in making an application to the Queensland Civil & Administrative Tribunal (QCAT).

HOW to prepare an EPA – don’t rely on DIY

It is important to recognise that with most Powers of Attorney the formal requirements to create the EPA must be strictly adhered to.

Whilst EPA documents can be obtained online, it is not recommended that you create such an important document on a DIY basis.

There are many pitfalls that can result in a Power of Attorney having no legal effect or have issues in relation to attorney conflict transactions. A conflict transaction happens when there is a conflict between your attorney’s duty to you and their own interests.

If you want to make an EPA, it is recommended that you obtain legal advice from a qualified solicitor, who can craft the document in a way taking into consideration your circumstances.

Please feel free to contact us to get your EPA prepared today. We can walk you through the process, ensuring that the needs of yourself and your family’s circumstances are specifically protected.