What is an enduring power of attorney?
An Enduring Power of Attorney (EPA) is a legal document that enables you to appoint one or more people you trust (your attorneys) to make decisions on your behalf in relation to financial matters and personal matters (including health care).
Under Queensland law, an EPA must be made in the approved form, and must be signed in the presence of an eligible witness, who must be a Lawyer, a Justice of the Peace, a Commissioner for Declarations, or a Notary Public. The witness is required to certify that you are making the EPA freely and voluntarily and that you understand the nature and effect of the document.
An EPA is an essential part of any estate plan – it is the only means recognised by the law for appointing someone to make decisions on your behalf if you lose the capacity to make decisions for yourself. Verbal statements about what you would like to happen if you lose decision-making capacity have no legal effect.
When should you make your enduring power of attorney?
We recommend that anyone aged 18 years or more should make an EPA. If there is one thing that we can recommend from our experience in the field of estate planning, it is that it is never too early to make an EPA.
Unfortunately, making an EPA is a task that many people put off. Sadly, in some cases people put off making their EPA until it is too late, leading to serious consequences for their loved ones.
What happens if you lose capacity and do not have an enduring power of attorney?
If you do not have a valid Enduring Power of Attorney in place and you become incapacitated due to illness or injury and cannot make decisions for yourself, nobody has automatic legal authority to make decisions on your behalf (subject to limited exceptions relating to health care).
This means that your assets cannot be managed, insured and protected, and your debts cannot be paid, placing the financial well-being of you and your loved ones at risk.
In addition to these financial difficulties, it is likely that there may also be a range of decisions about personal matters that might not be able to be made.
To obtain the legal authority to make decisions on your behalf, it will be necessary for someone with an interest in your welfare, such as your spouse, partner or next-of-kin, to apply to the Queensland Civil and Administrative Tribunal to be formally appointed to make decisions for you. This application process can be complex, lengthy, expensive and stressful for your loved ones. There is also no guarantee that the tribunal will appoint someone you would trust to act as your decision-maker.
A warning about preparing your own enduring power of attorney
While an EPA is made using an approved form which is available on the Queensland Government’s website, the form must be completed correctly.
Some people try to prepare their own EPA thinking they will save money, without understanding the legal complexities and risks involved. This is never a good idea.
In our experience, many people make mistakes when trying to prepare their own EPA, leading to difficulty, delay, conflict, stress and substantial expense for their attorneys and loved ones when those mistakes come to light after the person loses decision-making capacity. The attorneys may end up having to obtain costly legal advice and representation to resolve issues caused by mistakes in EPAs prepared without the assistance of an experienced estate planning lawyer.
When should you update your EPA?
Cost to make an enduring power of attorney
*A basic Will involves a straightforward distribution of the estate without the inclusion of complex or extensive specific gifts, pecuniary legacies or trusts, and no significant foreseeable risk of estate litigation. A common example of a simple Will is a distribution of the whole estate to a surviving spouse or partner, with a substitute distribution to other beneficiaries (e.g. children) if the primary distribution fails.
**A basic Enduring Power of Attorney involves the straightforward appointment of attorneys without the inclusion of complex or extensive terms, directions or expressions of wishes, and no concerns about capacity to understand the nature and effect of the document.
Our estate planning services across Queensland
Ownit Conveyancing has provided services across Queensland for over 30 years. While our offices are based in Brisbane, Beenleigh and the Gold Coast, our experienced estate planning lawyers can assist you no matter where you live across Queensland. For more information on how we can assist you in your area, please contact us now.