Enduring Power of Attorney: Affairs of the head, heart and hip pocket

By Brian Herd / 21 September 2022
4 min.
Worthwhile read for: Individuals, Families, Couples, Parents, Children of aging parents

Just imagine it – this is the year - the year you lose your capacity to make your own decisions. What would life be like?

For one thing, it will mean that you won't be making your own decisions – someone else will be. That person is likely to be your Enduring Power of Attorney (EPOA). Generally, an EPOA can make decisions about your finances, your health care and everyday personal things, such as where you live, what you wear, what you eat and where you go. I call these matters “The affairs of your head and your hip pocket”.

But, what about the affairs of your heart?  

How, and to what extent, can an EPOA decide on your happiness? Is your happiness even a consideration, or should they just be focused on the usual financial and everyday administrative tasks of managing the welfare of your outward existence? What about your internal life? What sort of social control can they exercise over you, or at least try to? Where does morality enter the calculation? How do they address the scourge of our later life – loneliness?

Here is a common hypothetical example we are often confronted with in aged care:

An elderly widow resident is befriended in an aged care facility by a male resident who is a widower. They become close companions, if not, bosom pals. They also appear to be happy; indeed, much happier than when they first moved into the facility. Even their health has improved.

Enter stage left: the protective adult child who is also the lady's EPOA. She becomes concerned, if not alarmed, by what she sees developing between the two of them. After all, it has potential emotional, if not legal, consequences (according to her lawyer). Subliminally as well, she also takes on the role of preserver of her late father's legacy, and his marriage to her mother. She becomes her moral guardian and the enforcer of her definition of a moral code. Her mother is expected to mourn the death of her late husband until she joins him in that other place. 

Morally armed and determined, the daughter instructs managers at the aged care facility to keep them apart and under no circumstances are they to be left alone together. The facility is understandably reluctant at first, given the refreshing smiles on the residents' faces, not to mention their need for less care due to their newfound happiness and health. 

The daughter is undaunted and simply ‘won't have it’! She threatens to report the facility to the media. Shy and reputation-sensitive, the facility managers relent, sensing a withering barrage of intimidation. Ironically, keeping the elderly duo apart is not as simple as it sounds. It requires constant staff vigilance and dealing with two very distressed residents whose health, as you might guess, quickly declines. It all adds up to a major additional call on scarce staff resources as well.

So, does the daughter have the power under her EPOA to give such direction, and is it valid if she does? While life is too short, legal answers are not. If you are experiencing – or concerned – about this type of situation, reach out to our team. At HopgoodGanim Lawyers we have experts specialising in family law and estate and succession planning. We are here to support you with expert legal advice and guidance in tricky situations.

For this hypothetical scenario, I’ll share the answer in relation to this daughter’s power, and the limits to it, in a follow-up article. You can be the first to receive our content – and subscribe to get it straight to your inbox.

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Brian Herd
Brian is a Partner in our Estates and Succession team.

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