Enduring Power of Attorney myths
Every Queenslander over 18 who has capacity should make an Enduring Power of Attorney. An Enduring Power of Attorney is valid while you are alive. A Will is a legal document that only comes into effect after you die. Find out more about Wills here.
In America the term attorney is used to refer to a lawyer. In Australia an attorney does not refer to a lawyer, it refers to your principal decision-maker under an Enduring Power of Attorney. When talking about Enduring Powers of attorney, you can nominate any person over 18 to be your attorney for health, personal and/or financial matters.
An executor is who you nominate in your Will to manage the finalising of your Estate after your die. A Will is an entirely separate legal document from an Enduring Power of Attorney.
If I lose capacity, my husband or wife will be able to ensure I am looked after so I don’t need an Enduring Power of Attorney?
Before a person loses decision-making capacity, it is wise if they outline who they would like to be their attorney for health, personal matters and financial matters. There are specific duties to be undertaken by an attorney and you should consider if your spouse would be able to undertake these requirements. You should consider a substitute decision-maker in case your spouse is not able to perform this role.
If there is conflict in your family it is also wise to specify your wishes so there can be no misunderstanding.
There is no difference between having the Public Trustee prepare my Enduring Power of Attorney and getting the form and making it myself.
While it is possible to prepare an Enduring Power of Attorney yourself, the document needs to be witnessed correctly; also we can assist you with specific clauses to ensure your Enduring Power of Attorney meets your needs.
For example some people like to include a consultation clause or an accountability clause to specify who your attorney/s must consult with or be accountable to, when they are making decisions and managing your affairs.
If I don’t have an Enduring Power of Attorney and I lose capacity the court will automatically appoint the Public Trustee to manage my affairs.
The Public Trustee is not automatically appointed by the court. A decision about who will manage your financial affairs is made by the Queensland Civil and Administrative Tribunal. The result of the hearing may be that the Public Trustee is appointed to manage your financial affairs or it could be a member/s of your family.
If I make an Enduring Power of Attorney I have to appoint my family because that’s what you should do.
Making an Enduring Power of Attorney is a serious matter. You should carefully consider who you appoint as your attorney/s for health and personal matters and for financial matters.
You may wish to choose someone independent to manage your affairs where:
- there is family conflict
- there is a prior history of violence or other abuse
- there is a history of addiction, gambling or drug use
- a potential Attorney has difficulty managing their own personal and financial affairs.