The importance of having a valid Enduring Power of Attorney

By Kelsey Leahy

We are regularly reminded about the necessity to have a Will in place – which of course is correct and should not be overlooked – however, a subject not so regularly discussed is the importance of an Enduring Power of Attorney.

A Power of Attorney is a document where you elect an attorney to manage either your financial matters, personal/health matters or both financial and personal matters. Your attorney has a duty to act in your best interest when managing your financial or personal matters. A Power of Attorney can be either General or Enduring. This article focuses on Enduring Powers of Attorney.

An Enduring Power of Attorney can commence for financial matters when you still have capacity and, importantly, continues to operate after you lose capacity – however you can specify that it only comes into effect once you lose capacity. An Enduring Power of Attorney for personal matters only comes in effect if you lose capacity. An Enduring Power of Attorney only comes to an end if the principal revokes it, the attorney revokes themselves, or the principal dies. Once you pass away, the Enduring Power of Attorney is null and void and this is when your will begins to operate.

In the event that you lose capacity and do not have an Enduring Power of Attorney in place, you no longer have the ability to elect an attorney to manage your affairs. This means that your loved ones will need to apply to the Queensland Civil and Administrative Tribunal to have an attorney appointed to manage your financial and personal/health matters. Applying to the Tribunal can be a costly and time-consuming task and in some circumstances, may result in the Public Trustee or Adult Guardian taking over the role as attorney. Making an Enduring Power of Attorney whilst you have capacity therefore makes it easier for your loved ones to manage your affairs and gives you peace of mind that someone who you know and trust is managing your affairs.

It is important to note that losing capacity can happen at any stage due to a range of factors and the loss of capacity can be temporary or permanent. Therefore it is important to have an Enduring Power of Attorney in place before you lose capacity to ensure your affairs can be dealt with by someone you know and trust in a timely and efficient manner.

We always recommend having a lawyer prepare your Enduring Power of Attorney as they can tailor the Enduring Power of Attorney to each individual’s needs. To discuss making an Enduring Power of Attorney further, contact one of our friendly solicitors at BELAW today.