Enduring Powers of Attorney have been legal in Queensland since September 1990. However, they were limited in operation to financial and property matters. On 1 June 1998, the Queensland Powers of Attorney Act was introduced and extended the powers of the attorney or attorneys to cover not only financial and property matters, but also personal and health matters.
Why consider an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) is recommended over a General or Ordinary Power of Attorney as an EPA ‘endures’ even when the person giving the power (the principal) loses his or her mental capacity. A General or Ordinary Power of Attorney is only valid while the principal possesses his or her mental capacity. If that person loses his or her mental capacity, the Power of Attorney comes to an end. An EPA should not be confused with a will. A will only comes into effect upon death, whereas an EPA is only valid during the lifetime of the principal. There is, however, no reason why the attorney or attorneys nominated cannot be the same person, or people, nominated as the executor, or executors, in the principal's will. It is often the case that a person will appoint his or her spouse/partner as an attorney and also an executor of his or her will. A person can only make a valid EPA if they are at least 18 years of age and possess mental capacity.
Who should you select as an attorney for your EPA?
It is very important that the principal appoints as his or her attorney someone that they know and trust. The powers of the attorney are very comprehensive. For example, the attorney can operate the principal's bank account and sell the principal's property. The attorney can be any person who is at least 18 years of age, is not a paid carer or health provider for the principal, and is not bankrupt. A principal can appoint more than one attorney. If more than one attorney is appointed, the principal must specify how the attorneys will act and make their decisions. For example, the principal may specify that any one of the attorneys may make a decision or that all must act unanimously or a majority vote will suffice.
What is covered by an EPA?
In an EPA, the principal can appoint one or more attorneys (and different attorneys) to make decisions in relation to financial matters, personal/health matters, or both financial and personal/health matters. Financial matters include operating the principal's bank accounts, paying bills and dealing with land or property. Personal matters include making decisions as to where the principal will live, with whom, whether they will work and if so where, as well as day to day issues such as diet and dress. Health matters include normal health care and medical treatment. In an EPA, the principal can insert specific information about his or her wishes and also restrict or limit the powers that the attorneys have. When an attorney acts for a principal, the attorney must follow not only the wishes of the principal specified in the EPA, but also a number of principles which are set out in the Powers of Attorney Act. While the attorney's power to make decisions for personal/health matters only begins if and when the principal loses his or her mental capacity, the attorney's power to make decisions for financial matters begins at the time specified in the EPA.
The limitations of attorneys' powers
An attorney cannot do any of the following for the principal:
- Make or revoke the principal's will.
- Make or revoke a Power of Attorney for the principal
- Vote on behalf of the principal.
- Consent to adoption of a child of the principal under the age of 18 years.
- Consent to the marriage of the principal.
- Give consent for a number of medical procedures including removal of tissue from the principal while alive for donation to someone else, sterilisation, termination of a pregnancy, and participation by the principal in research or experimental heath care.
Revoking an EPA
An EPA will be automatically revoked if any of the following happen:
- The principal validly revokes it.
- The principal makes a new EPA which is inconsistent with the old EPA.
- The principal dies.
- The attorney dies, loses their capacity or becomes bankrupt.
- The attorney becomes a paid carer or health provider for the principal.
- If the principal marries after making an EPA, the appointment of any other person other than the principal's new spouse is revoked.
- If the principal divorces after making an EPA, the appointment of the principal's former spouse is revoked.
In certain circumstances, the attorneys can also resign. Most people have an EPA prepared as "insurance" to cover the possibility that before they die, whether due to an accident or illness, they lose their mental capacity. Accidents or illness can happen to all of us and a person can then live for a lengthy period of time without regaining mental capacity. By preparing an EPA, you have the peace of mind that if something does happen to you, someone you know and trust will look after and manage your affairs. If you do not have an EPA and you lose your capacity before you die, The Public Trustee of Queensland, a private trustee company or some other government authority may end up looking after your affairs right up until you die or regain your capacity. If the EPA is prepared correctly, it can also cover circumstances where the principal goes away and requires things to be done in their absence or, while still possessing their mental capacity, they are physically incapacitated and cannot do certain things. As you cannot have an EPA prepared after you lose your mental capacity, it is important that, if you do not already have one, you do one now before it is too late.
For more information about Enduring Powers of Attorney, please contact HopgoodGanim’s Estate Planning and Administration specialists.