Although we never plan to get ill, the reality is that life can throw all manner of things at us. It is possible that through either accident or illness you may become temporarily or permanently unable to make decisions for yourself. You might have a stroke, become mentally ill, or even receive brain damage as a result of an accident playing sport on the weekend.
No one wants to think about these things happening, but if it does occur you need to have something in place so that someone can legally make decisions for you. As you well know, the rest of the world does not stop if something happens to you. Bills still roll in and your shares and property still need managing.
An Enduring Power of Attorney allows you to give a person of your choice the authority to make decisions on your behalf if you find yourself incapable of conducting your affairs at any time in the future.
An Enduring Power of Attorney is also useful in other situations. You could appoint an Attorney to conduct business on your behalf if you are not physically able to attend to your affairs. This could either be through a physical disability limiting your mobility or simply because you are overseas or out of town for long periods of time. By granting an Enduring Power of Attorney, a representative can conduct your affairs on your behalf according to your wishes.
What does it cover?
An Enduring Power of Attorney generally covers financial and legal matters, including the power to sell property. Even though you appoint an Enduring Power of Attorney to cover these matters you have the power to put conditions or restrictions on what decisions can be made on your behalf.
In some states an Enduring Power of Attorney can cover decisions about medical treatment, for example decisions about medical or surgical procedures, appropriate long term care or whether a life support machine is switched off. However, this is not the case throughout Australia and other legal avenues must be followed relating to decisions about medical treatment.
You will need to check your own state or territory’s requirements about what matters will be included in an Enduring Power of Attorney. If you live in New South Wales, Queensland, South Australia, Western Australia or Victoria, you can build your own Enduring Power of Attorney on Law Central . Each Enduring Power of Attorney on Law Central takes into account the different requirements of the state you reside in.
Regardless of whether medical or personal matters are included, an Enduring Power of Attorney is important as it can cover crucial decisions which need to be made on financial or legal matters when you are not able to make those decisions yourself.
Who should you appoint as an Enduring Attorney?
The short answer to this question is: appoint someone you trust.
The person or persons you appoint are making decisions for you while you are unable to, so it needs to be someone you trust. It can, but it does not have to be, a professional such as a lawyer. A relative or friend could also fulfil this role. In fact they can be the most logical choices when considering who would best know your interests.
Although one person is most commonly appointed, this does not have to be the case. You can appoint different people for different things, or you could appoint more than one Attorney to exercise their powers jointly.
If you appoint more than one attorney you need to consider carefully whether you appoint them as “Joint” or “Joint and Several” Attorneys.
If you appoint them as Joint Attorneys:
- they can only do things for you if both sign off on the thing to be done (for instance for bank transactions, the Bank would require both signatures); and
- if one dies or ceases to be capable of acting, then the other Attorney cannot act alone unless they apply to a Court or Tribunal for approval to do so.
- If you appoint them as Joint and Several Attorneys:
- either of them can act independently to do things for you; and
- if one dies or ceases to be capable of acting, then the other Attorney can continue to act alone.
- You could also appoint a Substitute Attorney who could act if your appointed Attorney becomes incapable of making decisions or has died.
As they will make decisions for you, it is a good idea to discuss your wishes with your Attorney both generally and in specific situations so that they will know what your wishes are.
Whomever you appoint as an Attorney must:
- be at least 18 years old;
- be of sound mind, that is, they must also have the capacity to make decisions; and
- agree to be your Attorney.
When does it come into effect?
You generally have the ability to nominate whether you want the Enduring Power of Attorney to come into effect immediately or only when, or if, you are incapable of making decisions.
What are the formal requirements?
All states and territories require the person making the appointment and the person/s being appointed to have full legal capacity at the time of the appointment. This means all parties must be over 18 years of age and have the mental capacity to make decisions.
The person you appoint must accept the appointment as Attorney.
If you grant your Attorney power to sell property this will need to be registered with the relevant state or territory land titles office.
There are other formal requirements (both as to form and witnesses), but these vary between states and territories. You will need to check your own state or territory’s requirements. If you live in New South Wales, Queensland, South Australia, Western Australia or Victoria, Law Central’s Enduring Powers of Attorney takes into account the differing requirements of these states.
What must the appointed Attorney do?
Firstly, the person you want to appoint as your Attorney must agree to being appointed. If they agree, once they are appointed they have certain legal duties. They must:
- consider your interests when making decisions as your Attorney;
- take care of your property;
- avoid conflicts of interest; and
- if necessary, prove that they have been appointed as your Attorney.
- Both the decision to act as an Attorney and the legal duties which come with it are significant. Your choice of person and their acceptance of this role needs to be considered carefully.
Does an Enduring Power of Attorney last forever?
You have the ability to revoke your appointment of an Enduring Power of Attorney at any time. It can be done in a number of ways including via a Revocation of Power of Attorney. For further information, contact the team at Civic Legal.
It is also important to note that an Enduring Power of Attorney ceases upon the Appointer’s death. Once a person dies, the provisions made in their Will or, if the person dies without a Will, the intestacy provisions will decide how the estate is distributed. As discussed in last week’s Bulletin, Will you add it to your EoFY checklist?, it is also vitally important that you have a valid Will so that you can decide how you want your assets to be divided.
What do I do now if I want to set up an Enduring Power of Attorney?
If you want to discuss your needs personally, call MJ Accountants to assist you with setting up your Enduring Power of Attorney.
As we are coming to the end of financial year, the traditional focus is on finances. Appointing an Enduring Power of Attorney should be an important step in protecting your assets and finances against whatever life throws you in the future.
What do I do if my Enduring Power of Attorney does not cover medical or personal matters?
Generally, if decisions about medical matters are not allowed to be made under an Enduring Power of Attorney then they can usually be made under a Living Will or an Enduring Guardianship.
Living Wills (also known as Advance Health Directives, Medical Directives or Declarations) allow you to set out in advance decisions about future treatment that you will, or will not, accept if you lack the capacity at the time to consent to it.
An Enduring Guardian can be nominated by you in advance and appointed by the Court or a Tribunal for times when you lack legal capacity to make decisions. Enduring Guardians, like Enduring Powers of Attorney can be subject to restrictions on the power that you grant to them.
Enduring Guardians can also be given the power to make decisions about other personal matters such as your long term living arrangements.
There are formal legal requirements which must be met for both of these instruments. It is highly advisable to get sound legal advice if you intend to apply for an Enduring Guardian or make an Advance Health Directive so that you can be sure it will apply only in the circumstances you want it to.