Why Do Parents Need an Enduring Power of Attorney?
As your children grow up, your estate planning priorities can change.
You may have spent years thinking about protecting your children, providing for your family, and making sure they have what they need. As they become adults, it’s also important to think about who will make decisions for you if you can no longer make them yourself.
This is where an Enduring Power of Attorney (EPA) comes in.
An EPA is an important part of your estate plan because it allows you to choose who you trust to make certain personal and financial decisions for you if you lose capacity.
And here’s something many people don’t realise:
Your adult children do not automatically have the legal authority to make decisions for you if you lose capacity.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document that allows you to appoint one or more people, known as your attorneys, to make decisions for you.
Depending on how your EPA is structured, your attorney may be able to make decisions about:
your finances and property
your bank accounts and bills
buying or selling assets
investments
where you live
your personal affairs
other matters relating to your care and wellbeing.
An EPA can also include specific powers, conditions, or directions about how your attorneys are to exercise their authority.
The important thing is that you choose your attorneys while you have capacity.
Why is an EPA important for parents with adult children?
When your children are young, you’re usually the person making decisions for them.
As they become adults, the relationship changes. They may become the people you would naturally turn to if you needed help.
That doesn’t mean they automatically have the legal authority to step in.
If you lose capacity without an EPA in place, your family may need to apply to the Queensland Civil and Administrative Tribunal (QCAT) for someone to be appointed as your guardian and/or administrator.
That can mean additional paperwork, time, expense, and uncertainty at a time when your family is already dealing with a difficult situation.
It also means you have not chosen who will make those decisions for you.
What happens if I lose capacity without an EPA?
Imagine you are seriously injured in an accident, experience a medical event, or develop an illness that means you can no longer make your own decisions.
Your bills still need to be paid. Your assets may still need to be managed. Decisions about where you live and the care you receive may still need to be made. Your family may know exactly what you would want, but knowing what you want and having legal authority to act are two different things.
Without an EPA, your loved ones may need to apply to QCAT for the necessary authority. You have no guarantee that the person appointed will be the person you would have chosen yourself.
Choosing an attorney
Your attorney may have significant power over your financial and personal affairs, so choosing the right person deserves careful thought.
For many parents, an adult child may be an appropriate choice. For others, it might be a spouse, another family member, a trusted friend, or more than one person.
There is no one arrangement that is right for everyone.
When choosing your attorney, consider whether they:
understand your values and preferences
will act in your best interests
are responsible with money
can make difficult decisions under pressure
will respect your wishes
are likely to be available when you need them
can communicate effectively with your other family members and professional advisers
are someone you trust completely.
You should also think carefully about whether you want to appoint one attorney or multiple attorneys, and how they will be able to make decisions.
An EPA is about more than ageing
You don’t need to be elderly to need an Enduring Power of Attorney.
Loss of capacity can happen at any age. It can result from an accident, injury, illness, or other unexpected circumstances.
That’s why an EPA is best thought of as planning for the possibility of losing capacity, rather than planning for old age.
You are making the decision while you can.
An EPA is part of your overall estate plan
Your Will deals with what happens to your estate after your death.
Your EPA deals with decision-making during your lifetime if you lose capacity.
They work alongside the other documents in your estate plan, including your Advance Health Directive and Letter of Wishes, to create a plan for different circumstances.
For parents with adult children, this can be an important opportunity to have conversations about your future, your preferences, and the people you trust to help you if you need it.
Give your adult children clarity, not a legal headache
None of us can predict exactly what the future will look like.
Putting an Enduring Power of Attorney in place means you can make your own choice about who you trust to make decisions for you if you cannot make them yourself.
It gives you greater control over your future and can reduce the stress and uncertainty for your family.
If you’re a parent with adult children and your estate plan hasn’t been reviewed for a while, an EPA is worth putting on the list.
Ready to review your estate plan? Head to Request a Booking to get started.
Frequently Asked Questions
Do adult children automatically have power of attorney for their parents?
No. Being someone’s adult child does not automatically give them legal authority to make personal or financial decisions for their parent if the parent loses capacity.
What happens if I lose capacity without an Enduring Power of Attorney in Queensland?
Your family may need to apply to QCAT for someone to be appointed as your guardian and/or administrator. The process can involve time, paperwork, expense, and uncertainty.
Should I appoint my adult child as my attorney?
An adult child can be an appropriate attorney, but it depends on your circumstances and who you trust to make decisions in your best interests.
Is an Enduring Power of Attorney only for older people?
No. Loss of capacity can happen at any age due to circumstances such as an accident, injury, or illness. An EPA allows you to choose your decision-makers while you have capacity.
What is the difference between an Enduring Power of Attorney and a Will?
A Will operates after your death and sets out how your estate is to be dealt with. An Enduring Power of Attorney operates during your lifetime and allows you to appoint people to make certain decisions for you if you lose capacity.