What is a Power Of Attorney?
A power of attorney is appointing a person or persons who have the legal right and responsibility to manage your finances and to make your personal health decisions for you if you are deemed incapable of doing so.
General power of attorney is typically used for businesses. But when it comes to an individual’s health care, we are talking about something called an enduring power of attorney.
When an individual can no longer look after their own affairs, either due to serious injury, illness, or aging, it is important to have someone step in and look after your finances and medical decisions. Avoiding this important conversation could take its toll on your loved ones.
How do I go about choosing someone to be my enduring Power Of Attorney?
When it comes to power of attorney, you do have the option of having different people do the roles. For example, you can have different people managing your finances as making your personal health choices, choosing your nursing home or in-home care service provider. This means you have the choice to choose, for example, an adult child who is savvy with finances to manage your money. You could then choose a close friend or another family member to arrange your personal health choices if they are the most compassionate person to make that decision.
It’s important to know that you can split the role. You also have the option to have up to five. Although five might be a little more difficult to manage you can certainly choose a few trusted people to act on your behalf.
Can I have more than one person to make the decisions about my care?
Let’s say you have three children who you would want to all make the decision about your care together, you could have them act jointly where the decision must be unanimous or a majority decision.
What should I discuss with my enduring power of attorney?
Communicating your preferences ahead of time is really important. If you have a preferred facility you would like to be at. Or if staying at home as long as possible is your preferred option. Discussing if you would want medical intervention to prolong your life makes life far easier for those left in the position of making the “right” decision.
What kind of lawyer do I need to see to arrange an enduring power of attorney?
Engaging the services of a lawyer will ensure you have the correct legal documents, properly completed, and properly witnessed. It is incredibly important to ensure your documentation is valid. Look for someone that practices estate planning. Not simply someone who will fill in a form.
Can’t I just arrange an enduring power of attorney when the time comes?
To be able to make an enduring power of attorney the adult must have ‘full legal capacity’.
If an individual has early-onset dementia. They may be really good in the mornings and if they were capacity tested, then they would be deemed to have the cognitive capacity. They would need to be able to understand their assets, decisions, powers, and authority they’re potentially giving away. We would need to certify that they understand and have the requisite level of understanding and capacity.
That same person on a bad day, or perhaps in the afternoon when they are tired might be quite vague and not have a requisite understanding. If the decision to put these documents in place is left too late we risk that capacity is gone. And when capacity is gone, we can no longer have a power of attorney document drawn up. This is when we find ourselves in the unfortunate and difficult situation where if a family member or loved one wants to assist in managing your affairs and doesn’t want them simply managed by the public trustee may no longer have that option.
Your loved ones would then have to go through a process of applying to QCAT (Queensland Civil and Administrative Tribunal) to see whether or not they can be appointed in limited circumstances. At that time, families are already struggling and grieving while needing to then go through a whole lot of unnecessary legal proceedings.
How often do I need to update the enduring power of attorney?
Considering the ease of which these documents can be arranged, it is advised to have them revised once every year or two.
If circumstances change you may like to update more frequently. For example, you may your son or daughter in place as the enduring power of attorney, only to find they are moving overseas. It might make more sense to have a child or friend who is closer physically to take on this role since the ease of signing documents, doing banking, etc. would be far more convenient.
These details were provided by Kym Briese of Briese Lawyers located in Toowoomba. This advice was relevant at the time of posting and specific to the needs of Queensland residents. To learn more about Briese Lawyers services visit https://www.brieselawyers.com.au/estate-planning.html
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