Your Property Plan – Do not Overlook a Everlasting Power of Attorney (EPA)! – household and marriage
To print this article, all you need to do is register or log in to Mondaq.com.
Comprehensive and up-to-date estate planning is critical to ensuring that you and your loved ones are looked after and cared for in the event of your incapacity for work or death. Failure to implement a comprehensive estate plan or review and update your estate plan as circumstances change can have dire consequences for you and your loved ones.
When most people think of estate planning, they think of wills. While there is no doubt that a valid, up-to-date will is an important element of a good estate plan, a will alone cannot solve all of the problems that need to be covered in a comprehensive estate plan.
In our experience, one of the main problems people most often overlook when planning an estate is the potential for one
Loss of decision-making ability (either temporarily or permanently) due to illness or injury.
There is a tendency to view the loss of decision-making ability as something that only affects the elderly through conditions such as Alzheimer’s and other forms of dementia. However, we have seen many situations in which unexpected illnesses or injuries sustained in accidents have deprived otherwise young, fit and healthy people of decision-making power and a complicated and sometimes bitterly contested legal chaos had to be cleared up. Many of these situations could have been avoided if proper attention had been given to estate planning. The potential loss of decision-making power is an issue that should be considered in everyone’s estate plan, regardless of how young (or young at heart!) You are.
A relatively simple and inexpensive way to counter the risk of loss of decision-making power is to use a
Permanent Power of Attorney (EPA). An EPO is a legal document that allows you to designate one or more people you trust to make decisions on your behalf if you lose power – the people you appoint are yours
At your EPA you can:
- Include the types of decisions your attorneys can make on your behalf – these may include decisions about:
- Money matters only;
- personal affairs (including Health care) only; or
- both financial and personal matters (including
- If you appoint more than one attorney, please indicate
how you want your lawyers to make decisions – jointly, individually, in majority or in some other way (e.g. one after the other);
- indicate Your views, wishes and preferences
on matters that are important to you – your lawyers must take these into account when making decisions on your behalf; and
- if you want, give legally binding information
to your attorneys on how to exercise their powers on your behalf.
For your ability to prepare an EPA, it is important that you fully understand the nature and effect of the document and are able to freely and voluntarily make decisions about the EPA. That means you Make your EPA as early as possible before your ability to make decisions is impaired.
The danger of delaying the creation of an EPA is very real. If you lose decision-making power and no EPA is in place, it will too late for you to do an EPA. Nobody else has the legal authority to create an EPA for you, and if there is no valid EPA, nobody has automatic authority to make decisions on your behalf. This can have serious consequences for you and your loved ones.
From a financial perspective, if you lose decision-making authority and do not have a valid EPA, your financial interests can be at risk as no one has the legal authority to make decisions about how to manage your financial affairs, such as:
- Operation of your bank accounts;
- Pay your bills;
- Manage your investments;
- Insuring and protecting your assets;
- claim disability, trauma and / or income protection insurance on your behalf;
- Care and support for your loved ones; and
- Take care of legal matters related to your finances and property.
From a personal decision perspective, decisions about your health care can be made by a person recognized as yours legal health attorney, the lack of a valid EPA means that there is no one legally empowered to make a range of personal decisions, including decisions about:
- daily decisions about matters such as diet and clothing;
- the services you need and who is providing those services to you;
- who can visit you or get in touch with you;
- Your living conditions, e.g. B. where you will live and who you will live with;
- whether you need to be placed in an environment that meets your needs, including care for the elderly;
- the types of activities you are involved in, including whether you work or conduct educational and training activities;
- Legal issues unrelated to your finances or property; and
- Advocate your welfare and welfare on your behalf.
In the absence of a valid EPA, someone interested in your welfare must go to the Queensland Civil and Administrative Court if you lose jurisdiction (QCAT) for an order to appoint one
Administrator (relating to your financial affairs) and / or a guardian (relating to personal matters, including your health care). The application process at QCAT can
expensive, time consuming and stressful for your loved ones.
It is up to QCAT to decide who will be tasked with managing your affairs – there is no guarantee
that the court will appoint a person whom you would have chosen yourself and you cannot tell the court who you would like to act on your behalf. If there is a conflict or the court is not satisfied that the applicant is an appropriate person to administer your affairs, QCAT can appoint the Queensland Public Trustee as your administrator (for financial matters) and / or the public guardian as yours Appoint guardian (for personal matters including health care).
The main benefits of having an EPA as part of your estate plan are:
- you can steering who has authority to make decisions on your behalf if you lose your authority to make decisions;
- Your EPA can be activated immediately if and when you lose decision-making power so that your attorneys can take appropriate steps to protect your interests; and
- become your loved ones not face the cost, delay, stress and uncertainty of applying to QCAT.
Once you’re in place, you should review Your EPA regularly, and To update if necessary, especially if one of the following events occurs:
- an attorney dies, loses decision-making power, goes bankrupt, or becomes your paid carer or health care provider – these events will result in the resignation of that attorney;
- if you get married or enter into a civil partnership – these events will revoke your EPO (in whole or in part);
- if you get divorced or end a civil partnership – these events will revoke the appointment of a lawyer who was previously your spouse or civil partner;
- If you lose confidence in a person whom you have appointed to be your attorney, that person will remain entitled to serve as your attorney unless you revoke the EPO in which you appointed them.
POPULAR ARTICLES ON: Family and Marriage from Australia