Everyone needs an Enduring Power of Attorney - Even Young People.

Everyone needs an Enduring Power of Attorney - Even Young People.

At O’Shea Dyer Solicitors, when we prepare a Will for our client, we will always include the preparation of an Enduring Power of Attorney document for FREE.

Accidents and illness can happen to anyone at any age. Having someone you trust appointed as your attorney becomes important in these situations as an attorney can assist you with health/personal and financial matters.

Young adults often think their parents will be able to step in. However, once they turn eighteen, parents can’t automatically act for their children. You can choose your parents to be your attorney, however you don’t have to. You can choose other family members or a trusted friend or associate.

People often think when they make a Will, their executor can step in if they become incapacitated. They cannot. Provisions in your Will don’t operate until after you die. Only an attorney, appointed in an Enduring Power of Attorney (EPOA) can do this.

The ‘Enduring Power of Attorney’ is the legal document that sets out who can assist you while you are incapacitated and still alive.

If you have appointed an attorney, it means you have exercised control over who makes decisions for you if you become incapacitated.

What is an Enduring Power of Attorney?

An EPOA is an often-overlooked document. People hope or assume they will never need one. To have one in place when you need it though, is invaluable.

An Enduring Power of Attorney (also referred to as an EPOA)  is a legal document that allows you to appoint someone you trust to act on your behalf to make decisions about:

• health/personal matters (such as such as consenting to medical treatment or deciding where you live); and
• financial matters

Importantly, it must be prepared while you have mental capacity.  Once you lose capacity, it is too late to make an Enduring Power of Attorney document.

Capacity can be lost at any age

It is common for people who live a long life to have a period of incapacity towards the end of their life. I have also seen many clients diagnosed with serious/terminal illnesses in their midlife who had a period of incapacity towards the end of their life. And even young healthy adults can lose decision making capacity due to things like:

• Car accidents
• Concussions and other injuries (e.g. while playing sport)
• Stroke, brain injury
• Workplace accidents
• Mental health conditions
• Temporary incapacity after surgery
• Complications from surgery
• Infections
• Medications
• Brain tumours
• Epilepsy (if seizures cause damage)

Even a temporary incapacity can have a devastating impact if you don’t have an enduring power of attorney in place.

If you are incapacitated and don’t have an enduring power of attorney no one can access your bank accounts to pay your bills or access insurances which may be required to pay for your medical expenses and other bills while you recover.

What can an Attorney do?

Many people, including young adults, have financial responsibilities such as rent or mortgage payments and car loans. They also have bank accounts and insurance.

If you lose capacity (even temporarily) you need will someone to manage these for you.

If you have appointed an attorney, they can (among other things):

• Pay bills
• Manage rent or mortgage payments
• Lodge tax returns
• Handle insurance claims
• Help decide where you live
• Make care arrangements, such as support services at home
• Consent to medical treatments on your behalf if you’re unable to decide.

If you become incapacitated (even temporarily) and you don’t have an Enduring Power of Attorney, then no one is authorised to deal with your financial matters such as paying bills or managing accounts. This means unpaid bills could cause you further financial hardship and assets could be frozen.

Creating an EPOA does not hand over power immediately.

When you create an Enduring Power of Attorney document, you can choose:

• who acts for you
• what they can do
• when their authority begins
• how they must make decisions.

What happens if you don’t have an EPOA and you become incapacitated?

No one is automatically entitled to be your attorney or to manage your finances and personal/health matters if you lose capacity.

Once you are over the age of 18, if you don’t have an Enduring Power of Attorney document in place and you become incapacitated, then your family will need to apply to a State Tribunal or the Court to decide who will be appointed as your financial administrator and to decide who will be your guardian make your health and personal decisions. The Tribunal application process can be a stressful, slow, expensive, and time-consuming process.  

If you leave it to a Tribunal to decide who should be appointed  to manage your financial and health affairs after you lose capacity,  you could end up with a family member who you do not trust (or who doesn’t know you particularly well) being appointed to manage your affairs while you are incapacitated.

Sometimes, when a family is required to apply to the Tribunal, lengthy and bitter disputes arise between family members as to who should be appointed.

Also, if no one suitable is found by the Tribunal to take on the role of Attorney, they may appoint a government official, namely, the Public Trustee and the Public Guardian. This effectively means strangers would be making critical decisions about your life.

Delays incurred in making an application to the Tribunal could cause financial issues and delay lifesaving health care affecting your chance at recovery.

Having an EPOA in place avoids all these issues. It also eliminates family stress and/or the ‘wrong’ person being appointed by a Tribunal.

It is always ideal to have given authority someone you have chosen.

Summary

An EPOA is an often-overlooked document. People hope or assume they will never need one. Most of us will need it at some stage in our life. To have one in place when you need it, is invaluable.

At O’Shea Dyer Solicitors, when we prepare a Will for our clients, we will always include the preparation of and Enduring Power of Attorney document for FREE.