As we age it’s more important than ever to think about who you want to act legally on your behalf in matters of financial, personal and health decision making. This is where an enduring power of attorney comes in.
An enduring power of attorney is a legal agreement that enables a person to appoint a trusted person – or people – to make decisions on their behalf.
According to Bill Mitchell, principal solicitor at Townsville Community Legal Centre, having and choosing an enduring power of attorney is particularly important for seniors.
“It’s really important to have a power of attorney if there is a likelihood that others will need to make decisions for you. That could include a range of decisions, but it mainly applies to financial decision making,” says Mr Mitchell.
While choosing the right person is essential, it’s also a good idea to have open and frank discussions about your own wishes. This way that person will be able to make a decision that you would make for yourself if you could.
“While our current system is based on substituted decision making, where we are supposed to be is supported decision making. Supported decision making is more about making a decision that the person would make themselves, rather than substituting your own decision in there.”
Who to nominate when choosing an Enduring Power of Attorney
Whoever you decide to be your attorney must be over 18 years. They also cannot be your paid carer (a person receiving a carer’s pension is not regarded as a paid carer).
“The number one thing you need to do is ensure the person you choose is responsible and trustworthy. It’s got to be someone you know well . As well as have complete faith in to do the right thing,” says Mr Mitchell.
“Look for someone who has a bit of experience in managing money or their own affairs. There’s little point appointing someone to be your financial attorney when they’ve never in their life managed any money. Or you if know them to be pretty hopeless with money.”
“They should be someone that has your best interests in mind. Also taking that further to a supported decision-making approach it should be someone that can work with you and those around you to make sure the right decision is made.”
Another good idea is to appoint at least two people to the role.
“I would always appoint more than one person. Having more than one person is really a check and balance. It’s about making sure that the accountability for the decision is spread across a broader base. You can appoint three if you want. Of course, the more people you appoint the more issues you have with them deciding what to do.”
It’s worth noting that you can appoint the same person or people to be your financial attorney and attorney for personal and health matters. Alternatively, you can choose different people for each role.
How to appoint an Enduring Power of Attorney
Mr Mitchell recommends that appointing an enduring power of attorney should be part of a larger discussion around advanced care planning.
“It’s really important for families at any stage to talk about advanced care planning. Advanced care planning is an umbrella term that covers a whole range of future steps,” Mr Mitchell says.
“Not everyone will need to take all the steps that come with advanced care planning, but if they have assets they should have a will. If they have a need for decisions to be made for them (which most people do) they should have an enduring power of attorney document. They should also have something that tells other people about their medical treatment, which could be an advanced health directive.”
“All of these documents are about ensuring that when you lose capacity or are very ill, or when you die, ultimately, that your wishes are upheld.”
Help is available to complete, witness and submit your Enduring Power of Attorney documents.
“In Queensland, you can go and see The Public Trustee and get a whole suite of documents done. You can have a will done for free and you’ll pay a fee to have an enduring power of attorney done.
“But it’s also just as easy and economical to see a private lawyer. They can do a will, enduring power of attorney and any other documents for you. It’s definitely worth thinking about having them done all at once. This will ensure they reflect your wishes at a certain point in time. It’s important to note that these documents also need to be updated from time to time too.”
How to get started with the Enduring Power of Attorney process
While taking these steps can seem daunting, it’s important to start the conversation. This will make sure you have a plan in place.
“You’ve just got to have the conversation. Most people are happy to plan their future financial arrangements like superannuation and insurance, this is really no different. This is just another aspect of planning for your future life, your retirement and older age.”
More information on appointing an enduring power of attorney is available here.