By Jennine Kiely
Solicitor, TASC Roma
At TASC, people often come to see us with questions about Enduring Powers of Attorney.
In your senior years, the Enduring Power of Attorney is one of the most important documents to know about. Unfortunately, it can cause conflict and misunderstanding within families and relationships.
As a solicitor with TASC, Jennine Kiely has supported many senior clients. With recent changes to Queensland Guardianship laws, she’s put together some tips on what to think about before signing an Enduring Power of Attorney.
Choosing to appoint someone to make financial or personal decisions for you can be a daunting task.
If the time has come for you to make this decision, there are many things to consider. For one thing, you will need to decide whether to appoint someone to handle your affairs immediately.
Or you might prefer to nominate someone in the event that you lose capacity to make the decisions yourself.
It is very important to obtain legal advice before signing any legal document. But it is especially important to get advice before completing an Enduring Power of Attorney.
In fact, the Queensland Government has released new Enduring Power of Attorney forms. These forms are intended to be much easier to use, and explicitly recommend that people get independent advice before signing the form.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney document is a legal agreement that allows a person to make decisions on your behalf. You will often hear them called an “EPOA”.
In an Enduring Power of Attorney, the word “attorney” describes the person who is making the decisions.
If you appoint someone as your attorney (the person making decisions), there are a number of times when the attorney will have the power to make decisions for you.
For example, they might make decisions:
• If you lose capacity to make your own decisions. This could be either on a temporary or permanent basis. Examples could be when people lose capacity to make their own legal decisions as a consequence of brain injury or dementia.
• If you are going to be uncontactable, for example if you are travelling in remote areas
• If you wish for the power to commence immediately.
Some things to consider before you appoint an Enduring Power of Attorney
Overall, there are a lot of considerations to take into account when appointing someone under an Enduring Power of Attorney. It is really important to think through questions like:
1. Do you trust that person or persons?
2. Do you want to appoint more than one person as your attorney? For example, if you have three children, will you appoint one child or all three?
3. If you appoint more than one person as your attorney, do you want them to act jointly and unanimously? In other words, will they all have to agree to the decision? Or can one person make decisions without reference to the other attorney?
4. Do you want the attorney (decision-maker) to have immediate power? Or is the appointment only to commence if you lose capacity to make your own decisions?
Under the recent changes to Queensland laws, there have been changes to the ways that Enduring Power of Attorneys operate. For example, only four attorneys can be jointly appointed.
If you are thinking about entering into an Enduring Power of Attorney arrangement, TASC strongly recommends that you obtain legal advice before doing so. Getting professional advice will help you make the right decision for your circumstances.
Making sure that you are using the right forms and that you are following the latest laws are just two good reasons to get advice before you sign on the dotted line.
TASC and other community legal services in Queensland are funded by government to provide free legal advice and may be able to assist you. As independent services, are goals are to protect and safeguard your legal rights.
What if I have already signed an Enduring Power of Attorney?
If you have already signed an Enduring Power of Attorney and are not sure how it will operate, don’t be concerned. The team at TASC can explain it to you.
If we explain the detail of the EPOA and you are not happy with it, there are also options.
If a person has not lost capacity, an EPOA can be changed, or “revoked” as it is called in legal terms.
Again, we strongly recommend that you obtain legal advice about the document. This can help make sure that you and the attorney (or attorneys) have a full understanding of how the EPOA operates.
The following case study gives an example of a client who came to see TASC about her husband’s EPOA. Unfortunately, this led to tension and abusive behaviour within the family. Our solicitor was able to explain the EPOA and our client’s powers under the EPOA. We talked with her about the decisions she could make as the attorney (decision-maker).
Please note, names have been changed to protect the client’s privacy.
Need free help with an Enduring Power of Attorney?
If you have any questions, TASC can provide legal advice on Enduring Power of Attorney documents to people who qualify for our service. We can also assist with other legal documents like Advance Health Directives.
Contact TASC if you need advice from our team of lawyers based in Toowoomba, Ipswich, and Roma.
Appointments are also available in surrounding areas including Warwick, Stanthorpe, Dalby, Chinchilla, Cunnamulla, Goondiwindi, Charleville, Quilpie, Miles, Tara, Texas, and St George.
Would you like more information about the recent changes to EPOA forms and the laws supporting people with reduced capacity to make decisions?
You may find this fact sheet written by Queensland Advocacy Incorporated (QAI) helpful (included with permission from QAI). Click on the link below to read the fact sheet.