An Enduring Power Of Attorney is a document that enables you to appoint a person or entity to make decisions on your behalf if you lose capacity or for other reasons would have difficulty managing your own affairs. It is different to a general Power of Attorney for the reason that a general Power of Attorney comes to an end once you lose capacity.
More on Enduring Power of Attorney:
The most important decision when making an Enduring Power of Attorney (EPOA) is choosing who to appoint. It is very important that you trust the person or people you appoint. If there is no one that you trust to appoint, you can appoint someone independent like a trustee company.
The role of attorney is powerful and carries significant responsibilities. In all circumstances, your attorney must:
- Act honestly, diligently and in good faith
- Act with reasonable skill and care; and
- Keep accurate records and accounts.
When making a decision on your behalf, if you are unable to make the decision yourself, your attorney must:
- Act on your wishes as far as it is possible to do so
- Take steps to encourage you to take part in the decision-making, and
- Act in a way that promotes our personal and social well-being.
You can appoint more than one attorney to have the same or different decision-making powers or to act jointly (i.e. – they both have to agree before making a decision) which is more likely to protect you from financial abuse
Choosing your Attorney
When choosing an attorney consider all your options. Think objectively about the people close to you (include trusted friends, siblings, grandchildren, nieces and nephews). You do not have to appoint your adult children or life partner. Different qualities and skills may be relevant for different types of decisions. For example, some qualities that may be important to you include:
- the ability to manage money well
- an ability to stay calm in a crisis
- the confidence to speak up on your behalf
- willingness to listen to, and act on your wishes and preferences, rather than their own
What to do once you have decided who you would like to appoint as your attorney?
Talk to the person you are thinking of appointing. See if they take the time to listen to what you want; that they understand the role and are willing to accept it. If you feel comfortable, let other family members and friends know who you have chosen to be your attorney at the time that you make the appointment. Consider including those reasons in your EPOA document to prevent problems later.
The decisions your attorney can make
You decide what type of decisions your attorney(s) can make:
- Medical treatment; and/or
- Financial and personal matters.
Decide what powers to give
You can appoint different people, or the same person, to make financial and personal decisions. Different skills might be helpful for different types of decisions.
Some examples of financial matters are paying expenses, withdrawing money from a bank account, and selling a property.
Personal matters include where and with whom you live and daily issues such as diet, activities and clothing. For example, an attorney with authority to make decisions about only financial matters, cannot make decisions about who you spend time with.
Some decisions involve both financial and personal powers, such as the decision to sell your home and move in with family.
You can plan ahead for your medical treatment and care by documenting your wishes in relation to future care and appointing another person to make medical treatment decisions for you, if you are unable to make a medical treatment decision in the future.
Limiting the decisions your attorney can make
Put careful thought into the types of decisions that may arise in the future, so that the limitations you put in place do not prevent your attorney from being able to do things that you would have wanted that you would have wanted them to be able to do.
Decide when the powers will start
You choose when your attorney’s powers start. This can be:
- when you cease to have decision-making capacity; or
- another time, circumstance or occasion.
How to start?
You are welcome to call the Elder Law team at Catherine Henry Lawyers on 1800 874 949 or (02) 4929 3995 for a confidential chat. Or simply complete our confidential online enquiry form below.