When it comes to planning for the future, one of the most important documents you can have in place is an Enduring Power of Attorney (EPA). This legal document gives someone you trust the authority to make decisions on your behalf if you are unable to do so yourself. In this article, I’ll explain what an Enduring Power of Attorney is, why it’s important, how to set one up, and the responsibilities involved, so you can make an informed decision.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) is a legal document that allows you to appoint a person (or multiple people) to make decisions for you if you become mentally incapacitated or unable to make decisions for yourself due to illness, injury, or old age. Unlike a regular Power of Attorney, which ceases when you lose capacity, an EPA continues to be valid even if you lose the ability to make decisions.
Why Do You Need an Enduring Power of Attorney?
Planning for the unexpected is essential for your peace of mind. Without an EPA in place, if you become incapacitated, someone may have to apply to the court to make decisions for you, which can be time-consuming and costly. Having an EPA ensures that your wishes are respected and that someone you trust is in charge of making decisions on your behalf.
Here are some reasons why you should consider setting up an Enduring Power of Attorney:
- Financial Decisions: Your attorney can manage your finances, pay bills, or handle investments if you’re unable to do so yourself.
- Health and Medical Decisions: An attorney can make healthcare decisions on your behalf, ensuring that medical professionals follow your preferences for treatment.
- Peace of Mind: Knowing that someone you trust is in charge of decisions for you gives you peace of mind for the future.
How to Set Up an Enduring Power of Attorney
Setting up an Enduring Power of Attorney in Australia is a straightforward process, but there are legal steps involved to ensure that the document is valid.
- Choose Your Attorney
The first step is to choose someone to act as your attorney. This person should be someone you trust implicitly, as they will have significant control over your financial and personal affairs. Most people choose family members or close friends, but you can also appoint professionals such as lawyers or accountants. - Decide on the Scope of Powers
You can specify what powers you want your attorney to have. The powers may be broad, covering all financial, legal, and medical decisions, or they can be limited to specific areas. For example, you might want your attorney to manage your finances but not make medical decisions. It’s essential to be clear on the scope to avoid confusion later. - Prepare the Legal Document
Once you’ve decided who your attorney will be and what powers they will have, the next step is to prepare the legal document. Each Australian state and territory has its own rules regarding EPAs, so it’s important to check the specific requirements in your jurisdiction. Generally, you’ll need to fill out a form, sign it in front of a witness, and have it certified by a legal professional. - Register the Enduring Power of Attorney
In some states, it’s recommended or even required to register your Enduring Power of Attorney with the local government or relevant authority. This helps ensure that the document is legally recognised and can be used when needed.
Responsibilities of the Attorney
When you appoint an attorney, it’s important that they understand the responsibilities they’re taking on. As your appointed attorney, they will be required to act in your best interests and make decisions that align with your wishes. Here are some of the key duties of an attorney:
- Duty to Act in Your Best Interests: An attorney must always make decisions that benefit you and are in line with your values and preferences.
- Record Keeping: The attorney should keep detailed records of any financial transactions or decisions made on your behalf.
- Avoid Conflicts of Interest: The attorney must avoid situations where their personal interests conflict with their duties to you.
- Regular Updates: If you regain capacity, your attorney should immediately stop acting on your behalf and return control to you.
Revoking or Changing an Enduring Power of Attorney
If you ever change your mind about the attorney you’ve chosen, or if circumstances change, you can revoke or change the Enduring Power of Attorney. This requires you to create a new document and notify the person acting as your attorney, as well as any institutions or agencies that have been involved in your financial or medical decisions.
Conclusion
An Enduring Power of Attorney is an essential document to protect your interests and ensure that someone you trust can make important decisions for you if you become unable to do so yourself. It provides peace of mind knowing that your wishes will be respected and that the right person is in charge. Setting up an EPA is a simple process, but it’s crucial to ensure that it’s done correctly, with clear instructions and the proper legal procedures.