Why do I need an Enduring Power of Attorney?
If you lose the ability to make your own decisions, someone may need to step in and make decisions for you. The question is who will make them, and what authority will they have to do so?
An Enduring Power of Attorney (EPA) allows you to appoint people you know and trust to make certain decisions for you if you lose decision-making capacity.
It can cover personal matters, including health matters, financial matters, or both, depending on how your EPA is prepared.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document where you appoint one or more people to act as your attorney and make decisions on your behalf. Your attorney can potentially make decisions about things such as:
Personal matters
where you live
your healthcare and treatment
your support and care arrangements
who you live with
other personal and lifestyle matters.
Financial matters
paying your bills and expenses
managing your bank accounts
buying or selling property
managing investments
dealing with your business or other financial affairs.
An EPA can also include terms and information about how your attorney is to exercise their powers. This can be an important part of tailoring your estate plan to your circumstances, wishes, and preferences.
Why do I need an Enduring Power of Attorney?
Because losing decision-making capacity can happen to anyone. It’s easy to think that losing capacity is something that happens later in life. It can happen at any age because of an accident, illness, injury, or other circumstances.
If you lose capacity, you may still have bills to pay, property to manage, healthcare decisions to make, and arrangements to put in place for your care. Having an EPA means you have already chosen who you want to step into that role.
You make that choice while you have capacity and can decide for yourself.
What happens if I lose capacity without an EPA?
Your family does not automatically gain legal authority to make every decision for you simply because they are your spouse, parent, child, or next of kin.
If you lose capacity and there is no EPA covering the relevant decision, an application to the Queensland Civil and Administrative Tribunal (QCAT) may be needed for a guardian or administrator to be appointed. QCAT considers whether a formal appointment is necessary and who should be appointed.
This means the people closest to you may need to deal with a formal legal process at a time when they are already trying to support you. And you have no control over who ultimately gets appointed. That person may be someone you would have chosen. They may not.
You choose your decision makers
One of the biggest benefits of an EPA is having a say in who makes decisions for you. You can choose people you know and trust to act as your attorneys, provided they meet the eligibility requirements.
You can appoint:
one attorney
multiple attorneys
different attorneys for personal and financial matters.
The right structure depends on your circumstances and the people you have available to take on these roles.
Choosing an attorney is a big decision. You are giving someone significant authority to make decisions on your behalf, so it’s important to choose someone you trust to act in your best interests and respect your wishes.
Your EPA can be tailored to you
An EPA isn't a one-size-fits-all document. The terms of your EPA should be considered as part of your broader estate planning strategy.
For example, you might need to think about:
who should make your financial decisions
who should make personal or health decisions
whether the same person should act in both roles
when financial powers should begin
whether your attorneys should act jointly or separately
what special powers or directions may be appropriate for your circumstances
how your EPA works alongside your Will and Advance Health Directive.
Queensland law allows you to specify when financial powers are exercisable. Depending on how your EPA is structured, financial powers may begin immediately, from a specified date, or when a specified circumstance occurs. Personal decision-making powers are generally exercisable when you do not have capacity for the relevant decision.
This is one reason we don't recommend treating your EPA as an isolated piece of paperwork. It forms part of the overall strategy for your estate plan.
Your EPA and your Advance Health Directive
Your EPA and Advance Health Directive can work together, but they are different documents. An Advance Health Directive (AHD) allows you to give directions about your future healthcare and medical treatment.
An EPA allows you to appoint someone to make certain personal and/or financial decisions for you. Your estate plan should consider how these documents work together, so there is clarity about your wishes and who has authority to make decisions if you cannot make them yourself.
When should I make an Enduring Power of Attorney?
You need to make an EPA while you still have the capacity to understand the document and the powers you are giving to your attorneys.
That means waiting until you think you might need one can be risky. You don't need to be elderly to have an EPA. You don't need to be sick. You don't need to own a huge amount of wealth. You simply need to consider what would happen if, at some point in the future, you couldn't make decisions for yourself.
Your attorney has legal responsibilities
Being someone's attorney is a significant responsibility.
Attorneys have legal duties and obligations when exercising their powers. They must comply with the relevant laws and the terms of the Enduring Power of Attorney, and there can be serious consequences if an attorney misuses their position.
This is another reason to think carefully about who you appoint, not simply whether you have an EPA.
An EPA is part of your overall estate plan
Your estate plan isn't just about what happens after you die. A good estate plan also considers what happens during your lifetime if you lose capacity.
Your Will deals with your estate after your death. Your EPA can provide for decision-making during your lifetime if you lose capacity. Your Advance Health Directive can record your healthcare directions. Your Letter of Wishes can provide additional guidance about your values, preferences, and the things that matter to you.
Together, these documents can give your loved ones a much clearer roadmap for supporting you and carrying out your wishes.
The person who makes the decisions matters
If you lose capacity, decisions still need to be made. You can either make a plan for who you want to make those decisions, or leave the appointment of a formal decision maker to the legal framework that applies at the time.
For us, that's the biggest reason to have an Enduring Power of Attorney. You get to choose.
You choose the people you trust. You can put the right structure in place. And you can give your loved ones greater clarity about what you want if you can no longer make those decisions yourself.
Ready to get your estate plan sorted?
An Enduring Power of Attorney is an important part of a complete estate plan.
Our Will Value Packages are designed as a complete estate planning solution, covering both death and incapacity, with documents including your Will, Enduring Power of Attorney, Advance Health Directive, and Letter of Wishes.
If you want to talk about what an EPA could look like as part of your estate plan, request a booking to get started.