Appointing an enduring power of attorney should become an important part of any advanced care plan, particularly as you get older.
An enduring power of attorney is a legal document which authorises another person or persons to act on your behalf in managing your affairs, which can become particularly relevant as you age and potentially lose the capacity to make your own decisions as the result of a health issue such as, a stroke or Alzheimer’s disease.
There are two types of power of attorney, namely ‘general’ or ‘enduring’. The former is often used for convenience when you’re overseas, or on a long holiday or suffer from poor health and need someone to make decisions in your absence and lapses as soon as you lose capacity. An enduring power of attorney, in contrast, continues after you lose capacity. This is why it’s an important decision as to who you appoint in this role and that you make the appointment whilst you are still in good health and able to make clear-headed decisions about your future.
What can an enduring power of attorney do?
Your enduring power of attorney can make important decisions on your behalf about personal and health matters, as well as about your financial affairs, should you lose capacity.
Personal/health matters might cover decisions about where and with whom you live, whether to consent, refuse or withdraw consent to particular types of health care (such as an operation you might need), and even daily issues such as what you eat and how you dress.
Financial matters might relate to income and investment decisions, managing your transaction accounts, buying and selling property, shares and other assets.
Who can be appointed as an enduring power of attorney?
An appointed attorney must be over the age of 18 years, must not be your health care provider (i.e. your doctor), must not be bankrupt, and must not be a paid carer (this does not include someone like a family member receiving a carer’s pension).
In general people will appoint a close family member (such as a spouse or child), a long-term friend or professional advisor (such as an accountant or lawyer) as their attorney.
Many specialists in this field will suggest appointing more than one enduring attorney to ensure accountability for decisions and as a check and balance to ensure your wishes are carried out. It’s also advisable to appoint someone who is already familiar with your affairs, is trustworthy and – given the power covers financial affairs – has some idea about managing money.
It’s important that the person you appoint approaches their role with the philosophy of ‘supported’ decision-making – that is, making decisions as if you would have made them yourself – rather than substituting in their own views about things when making decisions on your behalf. This is best achieved by detailed discussion on your wishes with your proposed attorney/s before you appoint them.
The contemporary prevalence of blended families and remarriage can sometimes raise difficulties in appointing close family members as your enduring power of attorney, particularly when it comes to children from an earlier marriage, in which case an independent but closely connected, highly trusted person might be a better option as your attorney.
How does the attorney’s power work?
In regard to personal and health matters, the power of your attorney to make decisions on your behalf does not begin until the time you have 1) become incapable of understanding the nature of, and 2) foreseeing the effects of a decision, and 3) being able to communicate that decision.
With financial matters, you can nominate when your attorney’s power begins. If you lose the capacity to make such decisions before the nominated date, the attorney’s power begins then.
What are the implications of not appointing an enduring power of attorney?
Should you become incapacitated without nominating a power of attorney, your affairs may end up being handled by the government, for a fee.
The Queensland Civil and Administration Tribunal (QCAT) will appoint an administrator on your behalf to authorise necessary transactions or when your family members can’t agree on decisions related to your welfare. All in all, this process means any wishes you had while you still had capacity may not be upheld.
What is the process of appointing an attorney?
As mentioned, making an enduring power of attorney is often done as part of an advanced care plan, including the making of a will.
While you can do these things yourself or through the Public Trustee, provided all documents are correctly witnessed and signed, for convenience and peace of mind it’s highly advisable to consult a lawyer with specialist family law experience in this field for guidance on the best way to proceed. They will help you complete, witness and submit the necessary enduring power of attorney documents and provide more detail on some of the issues raised above as to who is best to appoint and what they’re able to do on your behalf.