You might want to take another look.
Since last year, we have been running a peer education program on Enduring Powers of Attorney (which we will refer to here as EPAs). This has been an interesting learning as we’ve explored people’s knowledge, attitudes, and beliefs about EPAs. We want to take this opportunity to share with you some of the myths and concerns we’ve encountered.
Myth: I have a will, and that covers everything I need
When many of us think about the important legal documents to put in place, we think of a will. We have come across a lot of people while we’ve been running this program who have been confused about the difference between a will and an EPA.
A will is about who receives your money and property when you’ve passed away. An EPA is about who manages your financial affairs and/ or makes health and personal decisions on your behalf while you’re alive, if you lose the capacity to make these decisions yourself.
Importantly, your will doesn’t apply while you’re alive and so it can’t give instructions for how you want things dealt with for while you’re alive. If you want a document that does that, you need an EPA.
Concern: An EPA is a license to rip me off
We hear some concerns in the community about EPAs being used to help people get away with financial abuse or being used improperly. Some people have concerns that an EPA provides a cover for this behaviour. We are aware of these concerns in the community and we know that sometimes, this does happen.
There is no way to 100% guarantee that the person you appoint is not going to – deliberately or inadvertently – act improperly. However, one of the important things in making an EPA is that you give really serious thought to who you appoint and the conditions you put around how they act.
There is often an assumption that your child or spouse is the best person to act for you. That may be true for some – but if they don’t have the right knowledge and skills to make decisions and act for you, especially when it comes to your finances or your health wishes, or if you have any reservations about whether they will make the decisions you would have made if you could, then it is a good idea to look around at other options. These don’t have to be family members, though you can require the person you appoint as your EPA to consult with family members if you would like.
You can also appoint more than one person and require that they talk to each other about the decisions, or you can require that the person you have appointed consult with certain other people before they act.
Myth: I made an EPA so I don’t need to think about it anymore
We have come across many people during our education program who already have an EPA. Some of these have been made recently, but others were made many years ago. Some don’t know where the documents are, so they couldn’t put their hands on them if they needed them. Some can’t remember who they’ve appointed to act for them under the EPA, and those people may no longer be available or willing. Some appointed family or friends they’ve since fallen out with, or now have reason not to want to act for them. Some have had a change of circumstances, such as a marriage or divorce.
All of these are reasons to review your documents to make sure they are still valid, they still reflect your wishes, and the people you have appointed are still available and willing to act for you if required. Remember, you can also revoke your EPA if you want to, for as long as you have decision making capacity.
Concern: I can’t even raise the topic because it will upset my family
Talking about the possibility of something happening to you can be very distressing, and it can be really distressing to your family and friends. These are not easy things to talk about.
The reality is that whether or not you choose to make an EPA, if something did happen to you someone needs to know what’s important to you and what your wishes would be. They might not be pleasant conversations, but in the long run talking about it now makes things a lot easier on your family and friends later. If they don’t know what you would want, they will find it a lot more stressful if they are called upon to give advice or make decisions later.
Some people have also told us they were concerned about how to have conversations with their family about who they have chosen to act for them under their EPA, and why they’ve chosen those people. This can be difficult, especially if you are concerned about creating family tension or creating issues between friends. The peer education sessions provided tools to think through why you would choose a particular person or persons to act on your behalf. This information can make the conversations with family and loved ones easier, once they understand your rationale. Many people who attended our sessions said that the information we provided enabled them to raise the topic with family and have these conversations more easily – about their own EPA and those of other family members.
What is important in appointing someone to act for you is that they are someone you trust to make the decisions you would have made, in your interests, and that they have the right skills and knowledge to manage things the way you would want them managed. These might be difficult conversations to have, but this is your life you’re talking about after all. This is all about taking control of these things as much as you can, while you can.
Myth: My next of kin will automatically be able to act for me if I need them to anyway.
We often assume that if anything happens to us, our partner or children will automatically be able to take care of business, look after the bills, talk to the bank, make decisions about our health and care, and generally do whatever we would have done. This isn’t actually the case.
In many situations, the person acting for you needs to be named on your EPA before they can act on your behalf. This includes dealing with banks and utilities services, and many other big and small everyday things we usually take for granted. If they’ve not been named on your EPA, they will need to go to the Queensland Civil and Administrative Tribunal (QCAT) to be appointed. This can be a long and difficult process, and they may not necessarily automatically be appointed by QCAT.
The bank will also need to see a copy of the EPA, so your attorney will need a copy to show them – although each bank has its own rules and procedures about EPAs, so you need to check this out.
Concern: I don’t have any family and I don’t have any friends I would trust to appoint
We have met some folks during the program who don’t have family or friends they would want to appoint under their EPA, or who are concerned about the responsibility they would be asking others to take on.
You can choose who you appoint to act for you under an EPA. They don’t have to be family or friends, so long as they are someone you trust to make the decisions you would want them to make. As a safety net for people who don’t have others to appoint, or have no-one they want to appoint, you can appoint the Public Trustee to act for you in financial matters, or the Public Guardian to act for you in personal or health matters.
Not everyone is comfortable having a stranger act for them, but some prefer this option rather than choosing family or friends who may not have the skills, or may not be quite ready to take on the huge responsibility an EPA entails. If you do appoint one of these agencies, such as the Public Trustee, you can also ask that they consult with specific named family or friends when they’re making decisions.
Just bear in mind that it does cost you money to have the Public Trustee act for you under your EPA.
Myth: An EPA is only for people with permanent loss of capacity
There are a great many reasons you might – even temporarily – lose capacity. We have heard many stories through our program – of people having accidents, or becoming ill for a time but then recovering. Your loss of capacity might not be permanent, and it might not affect all your decision making, but it can happen to anyone at any age. An EPA means that even if you lose capacity temporarily, there is someone who can act for you until you recover.
We hope that this gives you some useful facts about EPAs and helps address some of the myths or concerns you might have had in your mind about them. We at COTA are not in the business of trying to sell EPAs, and we know that not everyone will decide it’s right for them. This is an individual decision about what is best for you. We hope, however, that this goes some way to making sure that decision is a well-informed one.