What is it? (An enduring power of attorney)?

An Enduring Power of Attorney (‘EPA’) is a legal document which allows a person (‘the principal’) to appoint another person (‘the attorney’) to make legal decisions on their behalf when the principal no longer has capacity to make decisions or can no longer act on their own accord. This may occur in situations when the principal has become too ill to make decisions on their own behalf. More than one attorney can be appointed.

An EPA is made before the principal loses capacity and another person cannot make an EPA on the principal’s behalf. In order to nominate an attorney, the principal must be competent, have capacity and be able to understand what an EPA entails.

Together with a will an EPA is an essential tool in the estate planning arsenal. Schedule a free consultation with an Estate Planning Lawyer today on 07 3073 2405

What power does an attorney have?

An EPA allows for an attorney to make decisions on the principal’s behalf in regards to personal/health decisions and/or financial affairs. The principal can specify the types of decisions that they want the attorney to be able to make.

Powers in regards to financial decisions can include:

Preparing the principal’s tax returns;
Managing the principal’s investments; and
Paying the principal’s bills.

Powers in regards to personal/health matters can include:

Decisions of where the principal is to live;
Medical decisions; and
Recreational activities that the principal can undertake.

However, the Powers of Attorney Act 1988 (Qld) outlines certain matters, referred to as ‘Special personal matters’, that the attorney cannot do on the principal’s behalf.

An attorney acting in their capacity under and EPA is not allowed to:

Vote in the principal’s name;
Making or revoke the principal’s will;
Consent to the marriage of the principal; or
Consent to adopting a child of the principal under 18 years.

Making an Enduring Power of Attorney

An EPA can be made by a person who is over the age of 18 years and has full capacity. In order for the principal to appoint someone as their attorney, an enduring power of attorney form must be completed. However, you should consider seeking professional advice from a will solicitor before creating an EPA.

To be able to make an EPA the principal must be able to:

Understand the effect of the decision;
Freely make the decision; and
Be able to communicate the decision.

Forms

A short form must be completed if the principal wants to appoint the same attorney/s for financial and personal matters.
A long form must be completed if the principal wants appoint different attorneys for personal and financial matters.

Once executed, the original EPA should be kept in a safe place and a copy also given to all relevant parties involved.

When does an attorney’s appointment begin?

Financial Decisions

When making an EPA, the principal decides when the attorney can start making financial decisions on their behalf. The principal can decide that the attorney can start making these decisions immediately or if they want they can nominate another date or specific occasion, for example once all capacity is lost to make these types of decisions.

Personal/Health Decisions

The principal cannot nominate when the attorney can start making personal decisions, this occurs when the capacity to make these decisions has been lost.

How long does an enduring power of attorney last?

In regards to financial matters, an EPA lasts until it is revoked. An EPA for personal/health matter will continue as long as the principal is incapable of understanding and foreseeing the outcome of a decision.

Who should I make my attorney?

The attorney that is appointed should be a person over the age of eighteen years that the principal trusts. For example, an attorney is often a family member or a friend with expertise in the area. However, the attorney cannot be the principal’s current health care provider (for example a doctor) or paid carer and cannot be not be a service provider for a residential service where the principal is a resident. For financial matters, the person that is appointed cannot be insolvent or bankrupt.

What happens if I don’t appoint an attorney?

If you lose capacity and don’t have an EPA in place, it may be necessary to apply to QCAT to appoint an attorney.

Is it possible to revoke an Enduring Power of Attorney?

As long as the principal still has the capacity to make an EPA, then it may be changed or revoked at any time. If the power is revoked then the attorney must be informed of this decision in. A Form 6 ‘Revocation of An Enduring Power of Attorney’ form must be filled out in order to revoke the power. The principal, a witness and the attorney are involved in completing this document.

There are several ways that an EPA automatically comes to an end. This includes:

When the principal gets married – If the principal gets married then the EPA is revoked unless the spouse is already the attorney. If the spouse is already the attorney, then anyone else that also has this power will be revoked.
If the principal gets divorced – If the attorney is the person that the principal has divorced then the EPA will be revoked;
If the principal dies;
If the principal makes an inconsistent document – If a subsequent inconsistent document is made, such as another enduring power of attorney, then this power is revoked;
If the attorney no longer wants to act;
If the attorney subsequently becomes the principal’s health-care provider or paid carer;
If the attorney is no longer capable of making decisions;
If the attorney is to become bankrupt or insolvent; and
If the attorney dies.

What is the difference between a general power of attorney and an enduring power of attorney?

The main difference between a general power of attorney (GPA) and an EPA is that an EPA still has effect after the principal loses capacity to make their own decisions.

A GPA is a legal document, which is signed, that appoints a person to act for the principal in regards to their financial and legal matters for a specific period or event. This appointment will last as long as the principal has capacity (i.e to understand the decision, freely make the decision and communicate the decision). This power is generally used for short term purposes, for example selling the principal’s house if they have gone overseas.

Does an enduring power of attorney cover health?

An EPA can make decisions regarding the principal’s health care. However, these decisions must:

Be in the principal’s best interest of maintaining and promoting their health or well-being;
Be made in a way that is least restrictive of the principal’s rights; and
If possible, these decisions must take into account the principal’s views and wishes, along with any information that has been given by the principal’s health-care provider.

However, in accordance with the Powers of Attorney Act 1988 (Qld) an attorney cannot make decisions regarding a principal’s health that are classified as ‘Special health matter’s’. These matters include but are not limited to:

Termination of a pregnancy of the principal; and
Sterilisation of the principal.

Advance Health Directive vs Enduring Power of Attorney

The main difference between an advance health direction (AHD) and an EPA is that when an EPA is entered into another person will make decisions on the principal’s behalf. In comparison, an AHD, allows a person to give directions regarding their own future healthcare, sometimes it is referred to as a living will.

The AHD comes into effect when the person loses the capacity to be able to make their own decisions. An AHD general includes the following:

An outline of the medical treatment and/or health care that the person wants if they are no longer have the capacity to make decisions for themselves;
It allows for the person to appoint an attorney for health and/or personal matters; and
It includes all the information that health care professionals need. For example, health conditions and allergies.

Contact our Brisbane Wills and Estates Lawyers to start your estate plan today. We offer a free consultation – call us on 07 3073 2405.

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