Enduring Power of Attorney - Don't wait - Do it now
In Australia, dementia represents the single biggest cause of disability in those aged over 65, more than 400,000 people live with it. Nearly 1 in 10 people over 65 have dementia. It's thought that there will be more than 589,000 people with dementia by 2028 and over a million by 2058. Sobering statistics!
Not that we like to think about it, but what would happen if you lost capacity and don't have an EPOA in place? Or what if you were in hospital and unable to make decisions for yourself who would make them for you?
An Enduring Power of Attorney (EPOA) is a legal document authorising another person, such as a trusted friend or relative, to act on your behalf to handle your affairs. The person appointed is known as your attorney. The Power of Attorney conveniently allows someone to handle your affairs if you go overseas, take an extended holiday, lose capacity to make decisions for yourself, suffer poor health, or reach an age when you need greater assistance. Knowing you have an attorney capable of dealing with your affairs when you are absent or infirmed gives you peace of mind. We believe a Power of Attorney is just as important as a Will.
While a Will operates on your death, a Power of Attorney operates during your lifetime. It’s very important to have the Enduring Power of Attorney in place otherwise, you risk a government department taking control of your affairs. Further, you will be charged for all work done by the government department at their normal hourly rate for acting as your attorney.
It’s important to discuss this with your solicitor as they will be able to offer advice as to what sort of person would make a good attorney and the important things you should be thinking about when making an Enduring Power of Attorney.
What is the difference between a General Power of Attorney and an Enduring Power of Attorney?
A General Power of Attorney is usually used in a business context by a corporation or an individual. It can authorise your attorney to deal with your financial affairs and comes into effect on the date you elect. It may limit the extent to which your attorney may deal with those matters. A General Power of Attorney does not operate when you lose capacity to make decisions.
Another document you might consider is an Advance Health Directive (AHD) which is a legal document giving instructions for your future health care, and comes into effect only if you are unable to make your own decisions. An AHD also enables you to appoint an attorney for health and personal matters if you want.
You can use the AHD to express your wishes in a general way, such as stating that you would want to receive all available treatment as well as give specific instructions in regards to certain medical treatments (i.e. cardio-pulmonary resuscitation; assisted ventilation, to keep you breathing if your lungs stop working; artificial nutrition and hydration).
An AHD allows you to formally outline your views about the quality of life that would be acceptable to you. If you are over 18 and have capacity you can have an AHD. A lot of people organise an AHD prior to going in to hospital for serious surgery. You will need time to organise the document as a Doctor is required to explain the document to you and sign it before you have it witnessed by a JP, Commissioner of Declaration or solicitor.
It is best to prepare for the worst and hope for the best. Having the documents in place now creates peace of mind that you have planned ahead and taken the decision out of the hands of a third party as to who will be appointed to take control of your affairs.
Changes to QLD Guardianship laws are now in place
From 30 November 2020, the Enduring Power of Attorney (EPA) and Advance Health Directive (AHD) forms that have been used for nearly 20 years in Queensland have been updated and amended and now must be used. If you have an EPA or AHD that was completed before 30 November it will still be valid.View All News