As our COTA Queensland community education program on Enduring Powers of Attorney draws to a close, we wanted to share with you the important take-home messages from the program.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) is legal document outlining who you would choose to manage your financial, personal, and health matters should you be unable to act yourself. It allows someone you have appointed to make these decisions on your behalf. The person(s) that you choose to make decisions on your behalf are called attorneys.
This can be confusing – often when we think about attorneys we think of lawyers in a TV show! However, in an EPA, an attorney is the person (or people) you appoint to act on your behalf. They don’t have to be a lawyer at all.
When does it come into effect?
An Enduring Power of Attorney generally comes into effect if you are unable to make decisions and manage things for yourself, either temporarily or permanently. This means that the person you have appointed to act for you can only do so when, and for as long as, you are judged by a professional to have lost the capacity to make decisions for yourself.
The exception to this is that for financial matters only (not health or personal matters) you can, if you want to, choose to have the EPA start immediately. You might feel, for example, that managing your financial affairs is just beyond you. In this case you can opt to have the EPA enacted immediately and the person you have named as your attorney can start acting for you immediately.
An Enduring Power of Attorney is valid while you are alive. This is different from a Will. A Will only comes into effect after you pass away. If you do pass away, your EPA is no longer valid and your Will takes over.
You can also revoke or change your EPA at any time while you have capacity to make your own decisions. This means that even once you’ve made an EPA, if you change your mind about having one, about who you’ve named, or about instructions you’ve given, you can change any or all aspects of the document.
Why might you want to appoint an attorney(s)?
An Enduring Power of Attorney may help you keep control of your life through the actions of a trustworthy person(s) who knows and understands your wishes and who is personally and legally accountable for their actions.
It’s an individual decision, and not everyone decides to make an EPA – but it’s important to understand the implications of the decision. If you have not appointed someone, and you lose capacity, the Queensland Civil and Administration Tribunal (QCAT) will appoint someone to act on your behalf. You can’t assume your partner or family can automatically act for you if needed – in many circumstances they can’t unless you have an EPA in place.
Decisions about your EPA are important.
People often appoint their partner or children by default. However, they might not be the best people to look after certain aspects of your life. For example, if one of your children isn’t very good with money, would you want them managing your financial affairs?
Your attorney(s) could be friends, family, the Public Trustee, or anyone else you trust to make decisions on your behalf. They should be able to make the decisions you would want them to make – and that means they need to understand you, what is important to you, and how you like things to be done. The criteria you use to decide who should act as your attorney(s) is specific and unique to you.
You can also have more than one Attorney. You can choose one for your personal and health decisions and one for your financial decisions, or the same or multiple attorneys for both. You can also name specific people, but you can require that they consult with others before they make decisions. There are a lot of options for how you can set up the EPA.
It’s important to talk about it
It’s important to have open and honest discussions with those involved to make sure they understand your wishes and to help you make the right decisions.
You need to talk with the person(s) you are wishing to appoint, to make sure they are ready and willing, and importantly, that they understand your wishes and what you would want them to do if the need arose. They also need to know where all your important documents are kept and how to access any records they would need to fulfil their role.
You may also wish to discuss your decisions with your GP and your financial planner or accountant, to make sure everyone is on the same page.
These conversations can be difficult, and many people are afraid of upsetting their family. Some are afraid of creating family tensions, particularly when they have chosen not to appoint one of their children or their partners. However, these are important conversations to have – the decisions your attorney may need to make for you affect your life and your wellbeing, so it’s essential that your wishes are clear and well understood.
There are people who can help you
There are a number of organisations that can help you with questions, concerns, or individual advice. They include:
|Aged and Disability Advocacy (ADA) Australia||T: 1800 818 338 (free call)
|Carers Queensland||T: 1800 242 636
|Community Legal Centres Queensland
Free information, advice, and referrals
|T: (07) 3392 0092
|Department of Justice and Attorney-General||T: 13QGOV (13 74 68)
|Donate Life Queensland||T: (07) 3176 2350
|Elder Abuse Prevention Unit (EPAU) Helpline||T: 1300 651 192 (toll free)
T: (07) 3867 2525 (interstate)
|Legal Aid Queensland
Monday – Friday 8.30 am-5 pm EST for the cost of a local call
|T: 1300 651 188
24 hours a day
|T: 13 11 14
|Office of the Public Advocate||T: (07) 3224 7424
|Office of the Public Guardian (OPG)||T: 1300 653 187
T: (07) 3234 0870
|Queensland Civil and Administrative Tribunal (QCAT)
8.30 am-5 pm on weekdays, except Tuesday – 9 am-5 pm
|T: 1300 753 228
|Seniors Enquiry Line||T: 1300 135 500 (toll free)
T: (07) 3867 2500 (interstate)
|The Public Trustee of Queensland||T: 1300 360 044
You might alos be interested in our recent article Planning Ahead … Think you have your bases covered? which clarifies some common myths and concerns we heard throughout the program.
We extend our thanks to the COTA Queensland Community Team volunteers who co-designed and delivered the program.
This program was funded by the Queensland Government, Department of Communities, Child Safety and Disability Services with the support of the Public Trustee.