Have you thought about what would happen if you lost capacity?

People are living longer these days, and incapacity is on the rise as a result. You need to think about how your affairs are dealt with if you lose capacity (due to accident or illness, for example). Who will be responsible for keeping your financial affairs in order? Who will be responsible for consenting to your medical care and treatment? And who will decide where you will live?

What documents do I need?

You need documents to delegate personal/health decisions and financial decisions to your chosen substitute decision makers. In a number of States, such as Queensland and Victoria, this is primarily done in one document, called an Enduring Power of Attorney (EPOA). In Victoria, you also need to prepare a separate document in order to appoint decision makers who can decide on your medical treatment if you were unable to make these choices yourself. This document is called an appointment of medical treatment decision maker. In New South Wales, the EPOA only covers the delegation of the financial power, and the Enduring Guardian document is additionally required to deal with personal and health matters. Each State has a different document so it is important that you have the right ones in place to cover both financial decisions and personal/health decisions in your State.

For financial decisions you can typically specify when the power is to commence (for example on your incapacity, or earlier to cater for say, an absence overseas). For personal and health decisions, your substitute decision maker can only make decisions on your behalf once you have become incapacitated.

These important legal documents must be carefully drafted, taking into account your particular circumstances and requirements, to protect you and your lifestyle in the event that you can no longer make decisions for yourself.

Are all Enduring Powers of Attorney created equal?

Not all Enduring Powers of Attorney are created equal. While you can download a template form from the Internet, it is the advice you receive about who you nominate and how you detail the powers to make decisions by your selected decision makers that will make a big difference to how protected you are if you ever lose capacity.

Examples include provisions regarding whether your selected decision makers are allowed to benefit from your assets, such as living in your home or using funds for their own benefit. The law does not allow substitute decision makers to benefit from your assets once you are incapacitated (except in certain circumstances) without special clauses included in the EPOA. You also need to consider whether you want to give your decision makers power to renew or create superannuation nominations, including nominating themselves and whether they can withdraw your super early, and so on.

Let us safeguard you

It is a good idea to have a thoughtful legal conversation on how you want your health and your financial affairs to be dealt with on your incapacity and what you are happy to allow or not allow your delegated decision makers to do.

At Estate First, we specialise in preparing Enduring Powers of Attorney for our clients which include these important additional provisions not included in the ‘shell’ form. These documents are increasingly relied on by doctors, banks and super funds when you are no longer able to make decisions for yourself. Please contact us to discuss how we can best draft this document for you.

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