Appointing an enduring power of attorney is an important legal step by which someone entrusts another person (the attorney) to make decisions for them during their lifetime.
This power can allow the appointed person to make both personal/health and financial decisions for the principal (the person who made the appointment).
An enduring power of attorney that relates to personal and health matters can only be exercised once the principal loses capacity to make those decisions during their lifetime.
Person and health matters might include where the principal lives and who with, as well as treatment options and medicines in the case of illness.
The power to make decisions about financial matters can commence when a person loses capacity but in addition, the document can specify that the power can be exercised immediately, from a specific date or in particular circumstances, before the principal has lost capacity to make such decisions.
Financial matters might include paying bills, preparing tax returns and managing investments.
What’s involved in appointing an enduring power of attorney?
It’s wise to seek guidance from a legal professional with experience in this area of the law. They can advise on the proper process to follow to ensure the power of attorney is legally valid.
A person must be over 18 to be eligible to appoint an enduring power of attorney, and be able to understand what is involved in making such an appointment.
This knowledge includes the principal understanding the extents and limits of the power, when it can be exercised, how it can be revoked and how it works when you lose capacity.
Appointing an enduring power of attorney must also be undertaken by a person freely, voluntarily and without undue influence by another person.
A person appointed in this role needs to be someone trusted by the principal. The powers invested in this person can easily be misused, particularly in regard to managing the principal’s financial affairs.
An attorney needs to be over 18, capable of exercising the powers they are appointed for, and not be a paid carer, health provider, residential service provider or insolvent.
In lieu of having anyone suitable to appoint as an enduring power of attorney, a person may appoint Queensland’s Public Guardian as an attorney for personal matters and the Public Trustee in regard to financial matters.
How do you appoint an enduring power of attorney?
As mentioned, independent legal advice should be sought before making an enduring power of attorney.
The process involves filling out one of two forms. The enduring power of attorney short form (also known as form 2) is used to appoint a person for personal (and health) matters only, a person for financial matters only, or the same person for both personal and financial matters.
The long form (also called form 3) is used to appoint different attorneys for personal (including health) and financial matters.
Once completed, the form must be witnessed by either a lawyer, a justice of the peace, a commissioner for declarations or a notary public. The attorney must then sign the document to signify acceptance of his or her appointment.
An enduring power of attorney does not require registration unless the attorney or attorneys need to deal with land on the principal’s behalf in Queensland. In this case, the enduring power of attorney must be registered with the Queensland Titles Registry.
The cost of making an enduring power of attorney document can vary depending on what a person is seeking to achieve, at Big Law, we are always upfront and transparent with our pricing for all our legal services.
In conclusion, things to remember
A certified copy of an enduring power of attorney document should always be kept in a safe place and reviewed every couple of years to make sure it reflects any changed circumstances in the principal’s life.
The principal should also inform other family members that they’ve made the document while they still have capacity. The slow onset of a condition such as dementia makes this a particularly important step in appointing an attorney to avoid later disputes about the validity of the document.
Finally, it’s important to remember that provided a person still has capacity, they can revoke the power of attorney at any time, though must inform the attorney/s that this has happened.
For any questions or concerns about enduring power of attorney, contact Big Law today for specialist advice.