Enduring Powers of Attorney appoints another person (or persons) to handle financial matters and/or make personal and health decisions on your behalf at times when you are unable to do so yourself. The person you appoint is called your Attorney and may be any trustworthy adult. Your attorney is not typically your lawyer and would usually be a spouse or trusted family member.
With financial matters, your Attorney, once empowered to act, will have the ability to deal with virtually any financial transaction which you may be involved in.
When it comes to personal and health matters, your Attorney may make decisions on your behalf when you are incapable of doing so yourself, for example day-to-day health matters such as consenting to having tests or procedures conducted, or deciding where you reside. You may dictate how you would like more significant health choices to be addressed by completing an Advance Health Directive.
It is also possible to limit your Attorney’s powers. You should explain your wishes to your Attorney once you have chosen them.
An Enduring Power of Attorney is an extraordinarily powerful document.
Commencement
You can nominate when the Attorney’s power commences for financial matters. It may commence immediately, on some future date or on the occurrence of a specific event, such as your losing capacity to be able to make decisions for yourself.
The power to make decisions about personal/health matters however can only commence when you have lost capacity to make decisions for yourself.
Multiple Attorneys
You may appoint one or more Attorney for both financial and personal/health matters or different Attorneys for each. If you appoint more than one Attorney, you can choose whether they must act unanimously, by majority or severally. Severally means any one of the Attorneys may exercise full powers by themselves without needing to involve the other Attorneys in the process.
Obligations on Attorneys
Typically an Attorney must:
- Act solely in your interest, not in their own interests or those of any other person;
- Avoid transactions in relation to which they have an interest;
- Avoid any mingling of their financial position with yours; and
- Keep records of whenever they use the power granted to them.
Conflict Transactions
It is possible to authorise your Attorney to enter into transactions from which they may receive a benefit themselves. This may be necessary from a practical perspective if your affairs and those of your Attorney are intertwined, for example when you appoint your spouse to be your Attorney.
To avoid the possibility of difficulties arising out of a presumed or perceived conflict of interest, if, while you still have capacity, you enter into a transaction with your Attorney, you should ensure that there is documentation in place to clearly spell out that you have entered into that transaction free of any influence from your Attorney. Such a step will protect your Attorney and ensure your wishes in relation to the transaction can be carried out.
Revocation
Enduring Powers of Attorney can come to an end in a number of ways:
- You can revoke your Enduring Power of Attorney at any time while you still have capacity.
- If you pass away, the Enduring Power of Attorney will automatically end and your Will takes effect, meaning that the person or persons you have named as the Executor of your estate will take control of your affairs.
- If your Attorney becomes bankrupt, they can no longer continue to act as your Attorney.
- If you marry after you make an Enduring Power of Attorney that power will be revoked. It is however possible, when making the Enduring Power of Attorney, to expressly state within the document that you have made it in contemplation of your upcoming marriage. In that instance, the Power of Attorney will not be revoked on your marriage.
Registration
Titles Registry (Financial Matters)
If an Attorney proposes to sign documents to be registered at the Queensland Titles Registry, then the Power of Attorney document will need to be registered at the Registry.
Queensland Office of Advance Care Planning (Personal / Health Matters)
You may lodge details of who you have appointed as your Attorney for personal / health matters with the Office of Advance Care Planning by lodging a Statement of Choices form. (Link to Statement of Choices form)
Review
An Enduring Power of Attorney is extremely powerful. You should therefore review it regularly to ensure that it is reflective of your needs even when circumstances in your life have changed.
If there is a change in your circumstances, whether personal or financial, you should consider whether your Enduring Power of Attorney should be updated.
Please contact us for further information on a suitable Enduring Power of Attorney for your circumstances.
Mark Lillicrap
Principal
