An Enduring Power of Attorney (EPOA) is a powerful legal document that enables you to appoint a trusted person or people to make decisions on your behalf when you are unable to make your own decisions or, more specifically when you don’t have legal capacity to make decisions yourself. Understanding an EPA’s purpose and implications is vital for protecting your future.

Nominating Attorneys

When making an EPOA, you can appoint one or more people to act as your:

• Financial Attorney – Make financial related decisions on your behalf
• Personal/Health Attorney – Makes personal, welfare and healthcare decision on your behalf

You may choose the same person for both roles or different people for each role depending on your preferences and circumstances.

What is Legal Capacity?

Legal capacity refers to the ability to understand the nature and consequences of your decisions and communicate those decisions effectively.

A loss of capacity can be temporary or permanent. Some examples of conditions that may lead to a loss of capacity include:

• A temporary unconsciousness due to an accident
• Acquired brain injuries
• Progressive illnesses like dementia

Can an Attorney be Appointed if I Don’t Have Legal Capacity?

Once you have lost legal capacity or deemed to have lost legal capacity, you are unable to make an EPOA. Without an EPOA, this means no one is able to make formal decisions on your behalf.

This means your family and friends will need to apply to the Queensland Civil and Administrative Tribunal (QCAT) to be appointed as the financial and/or personal/healthcare attorney.

This can often be a drawn out and stressful process for your family and could have been avoided had a valid EPOA been made.

Responsibilities of a Financial Attorney

A financial attorney serves to make financial decisions about you and on your behalf which can include:

• Paying maintenance and accommodation expenses
• Handling investments and financial planning
• Overseeing property transactions such as selling, buying or leasing property
• Completing your tax returns
• Renewing nominations for your superannuation fund

Responsibilities of a Personal/Health Attorney

A personal/health attorney serves to make decisions about your well-being and healthcare which can include:

• Determining where and with whom you live with
• Managing daily lifestyle choices, including diet and clothing
• Approving or declining medical treatments including life-sustaining treatments

Choosing an Attorney

Selecting the right attorney or attorneys is critical. Common choices include:

• A spouse or partner
• A sibling, child, or parent
• A trusted friend or adviser

You can appoint multiple attorneys and decide how they act:

• Jointly – All must agree on decisions
• Severally – Each can act independently
• By Majority – Decisions require a set majority
• A Combination – Tailored to your preferences

When Does an EPOA Take Effect?

• Financial Attorney – You can choose for your financial attorney to act immediately (meaning they can make decisions for you even when you still have legal capacity) or for only when you have lost legal capacity.

• Personal/Health Attorney – Your chosen attorney can only make personal and healthcare decisions when you have lost legal capacity.

Protect Your Future Today

Planning ahead with an EPOA ensures someone has the authority to make decisions for you in unforeseen circumstances and reduces stress for loved ones. To learn more or create your estate plan, contact our experienced Wills and Estates legal professionals.