What is an Enduring Power of Attorney?
In the A.C.T. an Enduring Power of Attorney is a document used to appoint someone to look after:-
- your financial affairs, and
- if you are unable to make decisions for yourself then that person (your attorney) can also be authorised to:-
- make decisions for you in relation to personal matters (eg. where you live, what you eat etc.), and
- make decision in relation to health care matters. This is fundamentally a power on your behalf to consent, refuse or withdraw medical treatment.
The person you appoint is called your “attorney”. It is possible to appoint more than one attorney.
Who can make an Enduring Power of Attorney?
Any person over the age of 18 years can make an Enduring Power of Attorney. It is not just a document for the elderly and the infirm, it is our belief that everyone over the age of 18 years should carefully consider making an Enduring Power of Attorney irrespective of age, health and whether or not they have substantial assets.
Who should you select as your attorney?
The appointment of your attorney enables that person to act in your place and do things you would normally do yourself. This includes things such as signing documents, paying the bills and doing the banking. The person you choose has the right to stand in your shoes when you wish them to look after your affairs. They can enter into agreements in your name and on your behalf.
Typically, your attorney will be a close relative. That person does not need to have any legal or financial qualifications. The essential issue is that you absolutely trust the person you appoint.
What happens if you lose capacity without having an Enduring Power of Attorney?
If you do not have an Enduring Power of Attorney and develop a mental incapacity it is then too late to ask us to prepare such a document for you as you may not have the capacity to sign it. The difficulty is that no person automatically has the right to manage your finances or make medical and personal decisions for you, not even next of kin.
It will be necessary in those circumstances to make an application to a Court, in the case of A.C.T. residents, the A.C.T. Civil and Administrative Tribunal (“ACAT”) for the appointment of:-
- a guardian to make decisions regarding your health and welfare, and/or
- a manager to make decisions about property and financial matters.
In these cases, it is not automatic that your next of kin will be appointed to fulfil these roles and it always depends on the circumstances of each case. It is not uncommon for the Public Trustee to be appointed as a “manager” rather than your next of kin.
When do the attorney’s powers begin?
In relation to “personal care matters” an attorney’s decision making powers arise only when you become a person with “impaired decision making capacity”. The attorney has no decision making powers prior to that point in time.
In relation to “property matters” you can elect when the attorney’s powers come into effect.
Essentially, there are really two options:-
- Immediately (but this does not stop you continuing to make financial decisions for yourself whilst you are able to do so), or
- Only when you are a person with impaired decision making capacity.
What if I don’t live in the A.C.T. or I have assets in another state or territory?
The good news is that an A.C.T. Enduring Power of Attorney is now recognised by legislation as being effective in each of the other states and territories.
But what about a “living will” or the Appointment of an Enduring Guardian?
An Enduring Power of Attorney is in effect a “living will”. It is operative only whilst you are alive and ceases to have any operation on your death. The different states and territories in Australia unfortunately give different names to documents that they have approved to grant enduring powers of attorney.
For example, in New South Wales an Enduring Power of Attorney only deals with financial matters and a separate form called an “Appointment of Enduring Guardian” deals with personal and medical issues that arise on incapacity.
Summary
Making an Enduring Power of Attorney is a precautionary step all sensible adults should consider.
We recommend that our clients of all ages and walks of life should make an Enduring Power of Attorney.
We are also able to give you independent and frank advice in regard to all of the issues that are associated with the giving of such a powerful and important document.
If you or someone you know needs an Enduring Power of Attorney do not leave it too late. Please contact either Brian Tetlow or Emma Bragg on 02 6140 3263 or email to [email protected].