HEALTH CHECK FOR YOUR ENDURING POWER OF ATTORNEY

Medically speaking, we all know that a regular health check-up with your Doctor (even when we are not sick) can detect and cure health problems before they become unmanageable. In many ways, the same practice should be followed with legal documents such as Enduring Powers of Attorney and Wills. For Enduring Powers of Attorney, below is a short quiz that everyone should take:

• Do you have an Enduring Power of Attorney? If not, did you know that if you were to become incapacitated, two Government Departments will take over the control of your life.  The Public Trustee will manage your finances and the Adult Guardian will handle health decisions.  By preparing an Enduring Power of Attorney however, you instead will be able to nominate the people that you choose to make those decisions for you.
• Is the Power of Attorney expressed as a “General” Power of Attorney or an “Enduring” Power of Attorney? If only a General Power of Attorney, the onset of incapacity will actually revoke the power of attorney meaning you are back with the Public Trustee and Adult Guardian.
• Was your Power of Attorney signed up before 1998? If yes, the Power of Attorney will relate only to financial matters.  To extend the Power of Attorney into personal health matters, a new Power of Attorney needs to be prepared now.
• Have you appointed a backup Attorney? A “backup Attorney” is the person or persons who will step in to perform the role if the first choice of Attorney is unable or unwilling to do the job.  If you do not have a backup Attorney, then you are back with the Public Trustee and Adult Guardian.
• If you have appointed more than one Attorney, how are they to act? If the Attorneys are appointed to act “jointly” or by some form of “majority”, the arrangements can, in practice become unworkable. It is frequently not understood that the workload for Attorneys can run into many hundreds of (big and small) tasks. If the EPOA requires two or more of the Attorneys to “work together” then none of that workload can be shared/divided between the Attorneys because each of them will be required to do (that is redouble-up and redo) 100% of the job. If the appointment is marked as “several”, the Attorneys then are able to divide and share up the work. There are protections against anyone turning “rogue” because the Attorneys remain obligated to confer.
• Is the Attorney (for financial matters) expressed to activate “immediately” or “upon incapacity”? For some, incapacity happens permanently and suddenly.  For many others however, it is a gradual decline where the person moves back and forth between capacitated and incapacitated states. If the EPOA is expressed to activate “only on incapacity” and the affected person is in the gradual decline scenario, they will potentially have to be repetitively hauled off to their doctor for a ruling as to whether they have lost or still retain capacity each and every single time the EPOA is to be used. This torturous problem is easily avoided by marking the EPOA to activate “immediately”.  After all, if the Attorney can be trusted to look after you once you’ve lost your marbles, they surely can be trusted to do you no harm whilst you still have them.
• Do you have or know where the original EPOA is? If the original EPOA has been misplaced and you only hold a (un-certified) copy, it is likely that if the EPOA is ever needed, it cannot be used without the original being produced.
• Has everyone signed and dated the document in the correct place? Note the person who witnesses the principal signing the Attorney must also complete a Certificate of Capacity and so signs the document in two locations and all of the persons who have been appointed must sign the document at the back.  The Attorney also must be dated.
• Have you completed part 3 concerning expanded powers? If this section is left blank then the Attorney will convey the usual or “standard” powers which in most cases will be sufficient.  In some cases however, an expanded array of powers will be advisable.  The decision about whether these powers are needed or not however, must be had in consultation with a Financial Planner and your Solicitor.
• Have you considered preparing an Advance Health Directive? The Advance Health Directive is the document that gives your own direction about what health measures you do, or do not want to have performed on you, if you are to lose capacity.  If an AHD is completed, it will in all circumstances trump the Power of Attorney.  The AHD can be done before, simultaneously with, or after the date that the Power of Attorney was/is prepared.

We here at Zande Law are more than happy to review your existing Power of Attorney for no charge.  So, for peace of mind and particularly compared to the consequences of what might happen if your Power of Attorney is actually defective, or you do not have a Power of Attorney at all, it is worth your while to have it checked over.

Joshua Zande is a Solicitor at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Josh for advice, please phone (07) 3385 0999.

The information in this article is merely a guide and not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.