Don’t assume that Enduring Powers of Attorney are only for the elderly…

When a young man suffered a stroke, life changed dramatically. Modifications to the family home were required to accommodate his care, and decisions as to his future medical care were pressing.

The family savings were held in a bank account of which the man was the sole signatory. He had lost mental capacity due to the stroke, and so could no longer manage the family’s financial affairs, leaving his wife without access to the funds required.

Many people are surprised to find out that you do not automatically have the right to assist your spouse, partner, your adult children or parents in their property and personal care and welfare matters (eg. decisions about medical procedures, hospital or rest home care) simply by virtue of being in a marriage or de facto relationship, or being a parent of adult children who lose capacity.

Unfortunately in the above scenario, because this young couple had not taken the relatively simple, inexpensive, steps to put their Enduring Powers of Attorney documents in place, the wife had to take proceedings through the Court to be able to access the funds to assist her husband.

She applied to the Court to be both her husband’s Property Manager and his Welfare Guardian. This process took a number of months and cost several thousand dollars.

There are two documents required for your Enduring Powers of Attorney – one in relation to your property and a separate document for your personal care and welfare.

Enduring Powers of Attorney as to Property

It is very important to put an Enduring Power of Attorney (“EPOA”) in relation to Property matters in place while you have the capacity to do so.

This document gives another person or persons, your Attorney(s), authority to act on your behalf in matters regarding your house, finances and other property assets in the event that you lose mental capacity. It is also important to consider either a second and even third Attorney and/or Successor Attorneys so that you are still protected in the event that one Attorney is unwilling or unable to act for you.

Enduring Powers of Attorney as to Personal Care and Welfare

It is equally important to put an EPOA in relation to your Personal Care and Welfare in place before you lose capacity. This document is only activated in the event that you do lose capacity, but if it is not in place at the time it is required, then your loved ones will have to apply to the Court to become your Welfare Guardian.

Putting Enduring Powers of Attorney in place is as simple as:

1. Considering who you would like to act for you in relation to your Property and Personal Care and Welfare. They can be the same person, but don’t have to be;

2. Meeting with your legal advisor to advise them of your wishes. They will ask you a series of questions around different options, like requiring certain other family members to be consulted or be provided with information when your attorney is acting on your behalf;

3. Your legal advisor will draft documents for your review;

4. You sign the documents with your legal advisor, and your attorneys also sign the document.

If you would like to put EPOAs in place, or are considering updating your existing EPOAs, see your legal advisor for advice on accurately recording your requirements for your own situation. These highly important documents protect you as well as your loved ones.