Enduring Power of Attorney
An Enduring Power of Attorney is where you appoint another person, or persons, to act in your legal capacity. This person should be someone that you trust as they will have the ability to make a lot of decisions on your behalf.
An Enduring Power of Attorney can assist in managing your finances and accessing health records if you are hospitalized. We recommend appointing an attorney when you complete your Last Will & Testament or are heading overseas for a holiday.
The Enduring Power of Attorney can be set to be activated immediately, or upon a certain even such as incapacitation due to illness or sudden events. As the Principal, you can even instruct the Attorney that they must contact a third party when they first exercise their powers as a protection against abuse of their powers.
An Enduring Power of Attorney must be executed whilst you still have legal capacity. In instances where you may have been diagnosed with early medical conditions that may impair decision making, such as dementia, we take extra care on ensuring that your appointment remains valid.
Application of an Enduring Power of Attorney
• John and Mary are happily married, own their home together and have two children.
• John is injured at work and loses his legal capacity to make decisions and enter into contracts.
• Mary can no longer afford to maintain the mortgage repayments and the family home needs to be sold.
• Unfortunately, John cannot sign a contract for sale, and Mary cannot sign on John’s behalf.
Mary would also be unable to Superannuation, insurance and bank accounts that may be solely in John’s name which could also apply further financial distress to their household.
In this instance Mary would have to apply to the Queensland Civil Administrative Tribunal for guardianship of John. This may take several months and is a generally protracted process which can cost the family in terms of time and money.
If John had appointed Mary his Attorney, then she would be able to execute a contract of sale for the house without delay, or access his superannuation, insurance or bank accounts.
What can an Attorney Do
An Attorney’s powers are not limitless. They can however:
• Assist with day to day banking activities
• Pay bills and make enquiries about your accounts
• Receive information from your health care professionals
• Deal with Centerlink and other government bodies
• Execute contracts including the sale of real property
• Deal with the NDIS on your behalf
• Prepare tax returns and deal with the ATO
What an Attorney Cannot Do
An Attorney cannot generally:
• Transfer real property, such as your house, to themselves
• Transfer real property, such as your house, to an immediate family member
• Write your Last Will & Testament for you
Who can be an Attorney
An Attorney can be:
• Anyone over the age of 18 however it is recommended that your Attorney be a trusted family member or friend
However they cannot be:
• An undischarged bankrupt
• A paid carer, or someone who has been your paid carer in the last three (3) years – It can be someone who has received a carer’s pension or allowance as they are usually a close family member
• A service provider at a residential service where you live – eg a care facility
• Your health provider
Reach out to our experienced team so we can assist you in ensuring your family does not have to experience legal costs and a loss of critical time.
