An Enduring Power of Attorney appoints an “Attorney” to act on your behalf in relation to the administration of your affairs at a time of your choosing, including following your incapacity.
Such appointment can be made in relation to both financial and personal/health matters. Should no such document exists upon your incapacity, there are various courses of action that can be taken in relation to the appointment of persons to act for you.
Personal and Health Matters
Pursuant to section 63 of the Powers of Attorney Act 1998 (Qld) (the Act), your spouse (if the relationship is close and continuing) is considered as the statutory health attorney, and can make any decision about the health matter that the Principal could lawfully make if they had capacity (in accordance with section 62 of the Act).
In the event your spouse is unable or unwilling to act, the Act provides alternate appointments and an application can be made to the Queensland Civil and Administrative Tribunal (QCAT) for recognition of same.
QCAT can appoint a person to act as a Guardian for a person only if they are satisfied that the adult for whom the Guardian is appointed (the Principal) has impaired decision making capacity and that a decision maker is needed to ensure the Principal’s needs are met and protected.
Anyone who has a genuine and continuing interest in the welfare of the Principal can apply for appointment as the Guardian for such person. This power is not necessarily automatically given to your spouse.
Although there are provisions by which a health and finance attorney can be appointed to act on your behalf, this can be a lengthy and costly process and, in the event of your incapacity, can add additional stress to those persons already concerns for your welfare.
Further, a document specifically prepared by you which appoints your preferred Attorneys can provide additional instructions to such Attorneys (which instructions, if the Court were to make, would require additional processes and orders – some of which simply may not be possible). For example, in the event that you required your Attorney to deal with jointly held property or to make a nomination (binding or non-binding) to your superannuation trustee in relation to the payment of your member interests. As such terms can be important to the smooth and effective administration of your Estate, it is important to consider the drafting of a detailed Power of Attorney.
If you would like to discuss the drafting of your Enduring Power of Attorney, please contact Caitlin Bampton on 07 5574 3560 or via email to Caitlin@nautiluslaw.com.au.