Enduring Powers of Attorney
Enduring Powers of Attorney have been legal in Queensland since September 1990. However, they were limited in operation to financial and property matters. On 1 June 1998, the Queensland Powers of Attorney Act was introduced and extended the powers of the attorney or attorneys to cover not only financial and property matters, but also personal and health matters.
An Enduring Power of Attorney (EPA) is recommended over a General or Ordinary Power of Attorney as an EPA ‘endures’ even when the person giving the power (the principal) loses his or her mental capacity. A General or Ordinary Power of Attorney is only valid while the principal possesses his or her mental capacity. If that person loses his or her mental capacity, the Power of Attorney comes to an end. An EPA should not be confused with a will. A will only comes into effect upon death, whereas an EPA is only valid during the lifetime of the principal. There is, however, no reason why the attorney or attorneys nominated cannot be the same person, or people, nominated as the executor, or executors, in the principal's will. It is often the case that a person will appoint his or her spouse/partner as an attorney and also an executor of his or her will. A person can only make a valid EPA if they are at least 18 years of age and possess mental capacity.
It is very important that the principal appoints as his or her attorney someone that they know and trust. The powers of the attorney are very comprehensive. For example, the attorney can operate the principal's bank account and sell the principal's property. The attorney can be any person who is at least 18 years of age, is not a paid carer or health provider for the principal, and is not bankrupt. A principal can appoint more than one attorney. If more than one attorney is appointed, the principal must specify how the attorneys will act and make their decisions. For example, the principal may specify that any one of the attorneys may make a decision or that all must act unanimously or a majority vote will suffice.
In an EPA, the principal can appoint one or more attorneys (and different attorneys) to make decisions in relation to financial matters, personal/health matters, or both financial and personal/health matters. Financial matters include operating the principal's bank accounts, paying bills and dealing with land or property. Personal matters include making decisions as to where the principal will live, with whom, whether they will work and if so where, as well as day to day issues such as diet and dress. Health matters include normal health care and medical treatment. In an EPA, the principal can insert specific information about his or her wishes and also restrict or limit the powers that the attorneys have. When an attorney acts for a principal, the attorney must follow not only the wishes of the principal specified in the EPA, but also a number of principles which are set out in the Powers of Attorney Act. While the attorney's power to make decisions for personal/health matters only begins if and when the principal loses his or her mental capacity, the attorney's power to make decisions for financial matters begins at the time specified in the EPA.
An attorney cannot do any of the following for the principal:
An EPA will be automatically revoked if any of the following happen:
In certain circumstances, the attorneys can also resign. Most people have an EPA prepared as "insurance" to cover the possibility that before they die, whether due to an accident or illness, they lose their mental capacity. Accidents or illness can happen to all of us and a person can then live for a lengthy period of time without regaining mental capacity. By preparing an EPA, you have the peace of mind that if something does happen to you, someone you know and trust will look after and manage your affairs. If you do not have an EPA and you lose your capacity before you die, The Public Trustee of Queensland, a private trustee company or some other government authority may end up looking after your affairs right up until you die or regain your capacity. If the EPA is prepared correctly, it can also cover circumstances where the principal goes away and requires things to be done in their absence or, while still possessing their mental capacity, they are physically incapacitated and cannot do certain things. As you cannot have an EPA prepared after you lose your mental capacity, it is important that, if you do not already have one, you do one now before it is too late.
For more information about Enduring Powers of Attorney, please contact HopgoodGanim’s Estate Planning and Administration specialists.