What is an Enduring Power of Attorney?
Most of us do not want to think about what would happen if we were to be involved in a serious accident or develop dementia. However, the reality is that for some of us, these possibilities will occur, and we will be unable to make financial decisions for ourselves. When we lose capacity and are not capable of making these decisions, it is important that we have an Enduring Power of Attorney completed as part of our Estate Plan.
Enduring Power of Attorney
An Enduring Power of Attorney is a legal document that allows you to appoint someone to make decisions about either your personal matters (such as where you live) and/or your financial matters (such as paying bills and dealing with banks). This person is called an Attorney. The power endures, or continues, if and when you are unable to make decisions.
It is important to know you can only make an Enduring Power of Attorney if you are over 18 and have capacity. You cannot make an Enduring Power of Attorney for anyone else.
Quite often, people incorporate their Financial and Personal Enduring Power of Attorney documents into one document when they have the same Attorney/s appointed.
You can limit the power to cover only specific matters, and you can choose when the powers start.
Your Attorney cannot make medical treatment decisions for you unless they are also your Medical Treatment Decision Maker. This appointment is made on another document.
From a practical standpoint, if personal decisions are required to be made for you, because you have lost capacity, and you do not have an Enduring Personal Power of Attorney in place, your loved ones will be required to make an application to VCAT (Victorian Civil and Administrative Tribunal) to have a Guardian appointed for you. This Guardian may be a family member, friend or a person from the Office of the Public Advocate.
This application can be a costly exercise if a barrister is required to appear. Further expense will be incurred if there is a dispute in your family, such as if a family member contests the application.
Much of this worry, stress and expense can be averted by making Enduring Power of Attorney appointments.
Author: Wills and Estate Lawyer, Mark Murnane
DISCLAIMER: This article is provided for general information purposes only. It does not constitute specific legal advice or opinion. Although our aim is to provide you with as accurate information as possible, you should not act or rely upon the information in this article without seeking the advice of an experienced lawyer who specialises in the particular area of law relevant to your inquiry. Please do not to hesitate to contact Murnane Legal to make further inquiries or to make an appointment to discuss the specifics of your situation.
