This article was originally drafted and published on 18 July 2019
As with all things in the law, the answer isn’t strictly certain and is nearly always fact and circumstance specific. What is certain though, is that leaving your Enduring Power of Attorney down to the wire will cause costly problems for you and your family.
Most agree it is better to have someone you know and trust as your Attorney, someone you choose that cares about you, rather than risking the court imposing on you a large, faceless organisation, to whom you are but one of many thousands, managed from afar, for a fee.
On several occasions, I’ve heard my clients initially instruct:
“Oh, I don’t need an enduring power of attorney right now, I’ll wait until the time comes.”
The difficulty with this thinking, is that losing your faculties is usually progressive, and you might not necessarily be aware that it’s occurring to you. Given the nature of an Enduring Power of Attorney, it carries strict requirements for the Principal to have capacity at the time of giving instructions for, and the execution of the document – at this time, the Principal must understand the nature and effect of the document they are signing.
Tempting fate and leaving your Enduring Power of Attorney to chance can result in a “too little, too late” scenario: by the time your family and friends realise you’ve likely lost capacity and you require assistance with your personal/health and financial matters, it’s almost always too late for you to make an Enduring Power of Attorney. In those circumstances, intervention and assistance from QCAT, the Office of the Public Guardian and the Queensland Public Trustee (formerly known as the Public Trustee of Queensland) is required – typically through a court ordered process. What costs more, an Enduring Power of Attorney prepared with knowledgeable legal advice and guidance, controlled by you, or a court ordered process controlled by third parties using your funds? In those circumstances, costs are not confined to money. What cost is to your health and well-being if you don’t prepare in advance?
Generally, where you have lost capacity, institutions, asset holders and organisations require documented authority (e.g., an EPOA or a QCAT Order) to be produced by those people assisting you in order to follow their instructions, particularly if it is relating to your finances and living/care arrangements.
We are all living longer, but not always well. Now more than ever, we need to plan for our decline that naturally comes with age. If you want to age the way you choose – safely surrounded and supported by those who care about you, then we recommend you speak to us about establishing a suitable plan for your twilight years.
You don’t need us, if all you want is a boiler plate Enduring Power of Attorney document, then head over to the Queensland government website to download the form. But, if you want to craft your own Enduring Power of Attorney, customised to your needs, your circumstances, your family and your financial affairs, then call us to canvass the numerous options available to you.
Disclaimer
The information in this article is of a general nature and not intended to be specific legal advice. Please seek the opinion of a qualified professional to advise you of your situation.