Keywords used in the below article:
Principle: The person who the enduring power of attorney is being made on behalf of.
Attorney: The person you name to manage your affairs in the event that you are incapable of doing so. You can assign up to four attorneys, in which all have to agree on each decision being made.
Entrusting someone with a power of attorney is a challenging yet crucial decision, as it involves placing a significant level of trust in another person. This legal arrangement not only grants them the authority to make personal decisions but extends to possible crucial aspects of your financial and medical matters as well. When considering this step, it is essential to carefully evaluate the person's competence, reliability, and alignment with your values and preferences.
An attorney can make decisions about:
Personal (health and lifestyle) matters:
Support services
Where and with whom you live
Health care
Legal matters that do not relate to your financial or property matters.
Financial (including property) matters:
Paying expenses
Making investments
Selling property (including your home)
Carrying on a business
In Queensland, a power of attorney is governed by the Powers of Attorney Act 1998, comprising of two types of power of attorney:
General power of attorney under Chapter 2 of the Act (which ends if you lose capacity); and
Enduring power of attorney under Chapter 3 of the Act (which continues if you lose capacity).
This article will focus on enduring power of attorney in Queensland.
What is an enduring power of attorney?
An enduring power of attorney (EPA) is a legal document that grants the attorney the authority to make decisions on the principles behalf, especially in the event that you become incapable of making those decisions yourself due to mental incapacity or other reasons. The term ‘enduring’ signifies that the power of attorney remains valid even if you lose the capacity to make decisions.
In the context of an enduring power of attorney in Queensland, the Act outlines specific qualifications for potential attorneys:
The attorney must be at least 18 years old.
The individual cannot be a paid carer or health provider for the principal.
The person should not be a service provider for residential services where the principal resides.
According to the EPA Act in Queensland, an eligible attorney must be:
At least 18 years of age; and
Is not, and has not been within the previous three years, a paid carer for the principal; and
Is not a health provider for the principal; and
Not a service provider for residential services where the principal is a resident; and
If the person would be given power for a financial matter, they cannot be bankrupt or taking advantage of the laws of bankruptcy as a debtor.
Who is eligible to create an enduring power of attorney?
You are!
If you are 18 years or older and possess the capacity to comprehend the implications of the authority you are granting, it is crucial for you to proactively plan for your future by establishing an enduring power of attorney. Losing capacity to make decisions does not happen to just aging people, it can happen at any time of a person’s life, being temporary or permanent.
By having an EPA, this allows for the principal to authorise the attorney to act on their behalf in any matter related to financial or personal affairs that the principal could lawfully manage themselves. The document includes terms and information regarding the exercise of power and remains valid even if the principal's capacity becomes impaired.
Attorneys are obligated to exercise their powers in accordance with the terms specified in the enduring power of attorney document. The document may outline specific circumstances and occasions for the exercise of financial powers. However, in the absence of such specifications, the attorney has discretionary powers once the enduring power of attorney is established.
What happens if you don’t have anyone to choose as your attorney?
If you don’t feel confident that you have anyone suitable in your life to take on the responsibilities of an attorney for personal matters, you can appoint the Public Guardian. For financial matters, you can appoint the Public Trustee or a trustee company to act as your attorney. It is very important to discuss both these options with your Solicitor to ensure you make the right decision for yourself.
So, what next?
Contact NJ Rose Lawyers to set up your EPA (and Will), work out which matter/s (personal, financial or both) you would like to have, and discuss your wishes with your appointed attorney/s.