If you lose capacity and do not have an enduring power of attorney (EPA) you will have lost the chance to choose who will look after your financial and personal affairs. This could mean someone you do not want becomes your decision-maker.
So it is important to understand what an EPA does and why you should make one now.
WHAT IS AN EPA?
An EPA is a document you can make (in the approved form) that allows you to appoint the person(s) you wish to make financial and personal/health decisions on your behalf whilst you are alive. This person is called your attorney.
Appointing an attorney for financial matters will allow them to do anything you could do for yourself financially (eg: sell your house, pay bills). You can choose when this power begins – one of those occasions is if you become incapable of acting for yourself, another is immediately once you have signed the document. This may be useful where you are out of the country and it is inconvenient for you to attend to financial matters personally.
Appointing an attorney for personal/health matters will allow your attorney to make decisions about matters such as where you will live, services provided to you, diet, dress, your daily care and legal matters relating to you which are not financial or property matters. This power only begins when you are incapable of acting for yourself.
It can be a difficult decision deciding who you wish to appoint as your attorney. An attorney is obliged by law to act in your best interests however there is always the possibility your attorney may not comply with their legal obligations. For that reason, it is important that you completely trust the people you appoint as your attorney will act in your best interests at all times.
WHAT MAY HAPPEN IF YOU DON'T HAVE AN EPA?
You may be thinking why you should make an EPA if your attorney has so much power over your affairs or there is a risk they may not act in your best interests.
If you do not have an EPA and become incapable of acting for yourself then nobody will have the legal authority to make decisions about your financial matters. For some health matters, the law allows certain persons to be your “statutory health attorney”, however this could be a person you would prefer not to make decisions for you.
If you are incapable of making an EPA then an application to the Queensland Civil and Administrative Tribunal (QCAT) will be needed to appoint an administrator for financial matters and/or guardian for personal/health matters, on terms that QCAT considers appropriate. Again, these could be people you do not want making decisions for you.
The QCAT process is often stressful for your loved ones. Substantial documentation needs to be organised and prepared (including medical reports) and then a hearing occurs. Persons applying to QCAT may seek legal assistance on the process and with the preparation of the documentation. These costs are always likely to be more than the cost of making an EPA, and the costs may be payable by you.
Whilst the QCAT process is underway, there is likely to be a period of time where no one has authority to act on your behalf and this may be detrimental to you.
Taking the time now to put in place an EPA which appoints exactly who you want to act on your behalf if you cannot do it yourself – is better for everyone. If done properly, this will:
- Save stress
- Save costs and time with making an application to QCAT
- Potentially stop arguments about who should be your decision-maker
- Clearly set out what your wishes are for all to see
WHERE TO FROM HERE?
For further information on EPAs, contact the McInnes Wilson Lawyers Wills and Estates team to discuss any questions you may have or assist you with the preparation of an EPA.
