Planning for the unexpected
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ENDURING POWER OF ATTORNEY
What is an Enduring Power of Attorney (EPoA)?
An Enduring Power of Attorney (EPoA) is a legal document where you can appoint a trusted person the power to make personal, health or financial decisions on your behalf in the case of something unfortunate happening to you that restricts your capacity to manage your affairs or you are out of the country.
A Power of Attorney is the legal power to make decisions on someone else’s behalf.
“Enduring” simply means that the power continues even if the person giving it loses the capacity to make decisions.
You can appoint the same Attorney for both personal and financial decisions, or you can appoint different people for each power of Attorney.
Your Attorney can consent to the withdrawing or withholding of life-sustaining medical treatment if, for instance, you become terminally ill or go into a state of permanent or persistent unconsciousness.
In the event that you are unable to make your own decisions, your Advance Health Directive would come into effect if you have one in place. This document sets out how you want your health matters to be dealt with and overrides any decisions of your Enduring Power of Attorney.
An ‘Advance Health Directive’ is a voluntary agreement that anyone over the age of 18 with full ‘legal capacity’ can make. ‘Legal capacity’ is where a person is able to use reasonable judgement and understand the nature and effect of the document they are completing and the nature and extent of their estate. If there is any doubt about the persons ‘legal capacity’ a doctor can make a decision about this.
What are the benefits of an Enduring Power of Attorney?
If you are unable to make decisions or become incapacitated, it may cause tension or problems amongst your loved ones if there is confusion about how to manage your personal, health or financial decisions. Having an EPOA in place means you have a trusted person appointed to make these decisions thus reducing the level of stress and confusion for your loved ones during this difficult time.
Additionally, having an EPOA when you are out of the country will provide you with comfort knowing that someone you trust has the legal authority to manage your affairs if something were to happen to you.
An Enduring Power of Attorney can be more beneficial than an ordinary Power of Attorney as it will continue to operate even if you lose full ‘legal capacity’. It is a legal document that if completed correctly can be enforced to reduce tension or troubles if multiple people are trying to control your property or finances.
How does an Enduring Power of Attorney work?
The rules relating to an Enduring Power of Attorney’s are found in the Powers of Attorney Act 1998 and in Part 9 of the Guardianship and Administration Act 1990 (Cth).
An Enduring Power of Attorney can take effect in a number of situations including; immediately upon signing it, where the person loses their ‘legal capacity’ or at another appointed time such as when you are out of the country.
An Enduring Power of Attorney is only valid in the state that you make it in, so you need to make sure that it is created properly.
Many people do not realise that there are a number of situations where your Enduring Power of Attorney will automatically end including;
- If you get married – If you marry, the power of Attorney is revoked unless your new spouse is already your Attorney. (If your new spouse is your Attorney, the only power that is revoked is the power of any other Attorney you may have).
- If you get divorced – If you divorce, the power of Attorney is revoked to the extent that it was given to your former spouse.
- If you pass away – If you pass away, the enduring power of Attorney is revoked in its entirety.
- If you make an inconsistent document – This power is revoked to the extent of any inconsistency with any later document you complete, such as an Advance Health Directive or another enduring power of Attorney.
- If your Attorney withdraws – Your Attorney may withdraw by giving you a signed notice or by getting the Court’s leave to withdraw.
- If your Attorney becomes your paid carer or health-care provider – If this happens, your Attorney’s power is revoked.
- If your Attorney becomes incapable –Your Attorney’s power is revoked if he/she becomes incapable of understanding the nature and foreseeing the effects of a decision, and of communicating that decision.
- If your Attorney becomes bankrupt or insolvent.
- If your Attorney passes away.
If your Attorney will be making decisions about buying or selling land, this document must be registered with the Land Titles Office. If you register the document, you must take the original to the Land Titles Office and pay the fee. If the power is revoked, you must de-register the document by lodging a revocation form in the Land Titles Office.
How can we help you?
Contact us today to organise an appointment with an Estate Planning Specialist Solicitor.
We provide a holistic service and can assist you in all areas of your financial life.