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Enduring Powers of Attorney explained

Many people have heard of Powers of Attorney however most do not fully appreciate the extent of the power they confer, the benefits they deliver or the types of powers of attorney that exist.

A power of attorney is a useful and powerful legal document used to authorise someone to handle your affairs in a variety of circumstances. It is often used if you are planning to go overseas or take an extended holiday, suffer from poor health, have an accident or reach a stage in your life when you need assistance managing your affairs.

In this article we examine why appointing an appropriate attorney is so strongly recommended by lawyers and explain the difference between a general power of attorney and an enduring power of attorney.

Appointing a person to act on your behalf

The appointment of an attorney enables that person (or people, jointly) to act in your place, and do things you would normally do yourself, such as signing documents, possibly paying bills and doing banking. The person you choose, your attorney, effectively stands in your shoes and can enter into agreements in your name and on your behalf, binding you as if you had signed the document yourself.

Accordingly it is critical that you select the right person to act in that capacity. The person does not have to be a lawyer. It is vital that the person knows you well, and what you would want, and that you trust them implicitly. It is often a trusted family member but whoever it is must be over 18.

Often 2 or 3 persons may be appointed to act as joint attorneys (i.e. so they must all agree on a course of action, rather than just one person acting alone).

The difference between a General and an Enduring Power of Attorney

Not all powers of attorney are the same.

A General Power of Attorney is a legal document that gives the attorney the authority to make decisions about financial and legal matters on behalf of the person who appoints them. This power lasts only for as long as the person who appoints them has mental capacity. The general power ceases to operate if the person granting the power of attorney loses capacity to make decisions. A general power of attorney is often used as a tool of convenience, for example, to authorise someone to look after your financial and legal affairs in Australia while you travel overseas, or a company might appoint someone to act as its attorney.

An Enduring Power of Attorney (‘EPA’) is similar to a General Power of Attorney except that the powers continue, or endure, even if the donor loses mental capacity.

Any Power of Attorney terminates when you die.

What happens if you lose capacity without having a Power of Attorney?

The likelihood of someone losing capacity is often not properly considered.  If you do not have an enduring power of attorney and suffer mental incapacity temporarily or permanently (for example as a result of a stroke or an accident) you may be unable to manage your financial affairs. At that stage it will be too late to then have a lawyer prepare such a document, as you do not have capacity to sign it.

No-one automatically has the right to manage your assets, even if they are your husband or wife.

This may have a significant effect on all financial decision making including regarding your bank accounts, your jointly owned home, shares or other jointly owned assets or liabilities.

Without an EPA, to have someone authorised to make decisions on your behalf in these circumstances involves an application to the Queensland Civil and Administrative Tribunal (QCAT).

The applicant, usually a family member, could apply to become your administrator. However this is subject to that person being deemed fit (as in ‘fit and proper’) by the Tribunal. Failing this finding of being ‘fit’, the Tribunal may appoint the Public Guardian to manage your affairs.

If this happens, your family may need to consult with a government department to deal with your ongoing financial decision making until your death.

When does an Attorney’s power begin? 

You may nominate when your attorney’s power is to begin.  If you do not name a date or an occasion, it begins immediately. 

It is important to note that even if you give your attorney power immediately, you may also continue to make decisions yourself while you are able to do so. By making a power of attorney you do not restrict or give up the right to make any financial decisions as you do today.

Summary

Powers of attorney are an important part of asset protection and risk mitigation strategies, not just a stop gap measure for an overseas trip.

We strongly recommend all our clients of all ages and walks of life make a power of attorney (in favour of one or more persons they trust implicitly) so their assets are not locked up if they lose legal capacity to sign documents and to prevent their loved ones being put through avoidable stress, and the expense and delay of an application to QCAT.

If you need help or advice please contact us: 

Ken Waddington

Partner

(07) 5443 4866

kwaddington@gwlaw.com.au

If you need help, or have a question get in touch with us today.