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As people are now living well into their 80s and 90s the likelihood of being unable to look after themselves by reason of dementia, Parkinson’s disease or stroke looms large. Documenting who you want to look after your affairs in the event of incapacity is as vital as having your Will in order.

1. What is an Enduring Power of Attorney?

2. What happens if you don’t have an Enduring Power of Attorney?

3. Superannuation issues.

4. Financial or health or both?

5. When to start?

6. Limits on powers to be exercised.

7. Misuse of Enduring Power of Attorney (EPOA).



1. What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a document that enables you to appoint a person to make decisions on your behalf if you lose capacity or for other reasons would have difficulty managing your own affairs.

It is different to a General Power of Attorney for the reason that a General Power of Attorney comes to an end once you lose capacity.

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2. What happens if you don’t have an Enduring Power of Attorney?

People often assume that their spouse will be able to manage their affairs if they are incapable of doing so themselves. Unless the assets are jointly owned, this will not be possible.

An application can be made to the Queensland Civil and Administrative Tribunal (QCAT) for a person or persons to be appointed as your decision maker for your personal and financial affairs. This can take time and, in the meantime, your affairs may come to a stand-still.

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3. Superannuation issues.

If a trustee of a SMSF loses capacity and there are no other trustees remaining, an administrator or other legally recognised substitute decision-maker must be appointed within six months or the fund becomes non-compliant, causing significant tax ramifications. Rather than running this risk, it is much simpler to have an EPOA in place.

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4. Financial or health or both?

An EPOA can be drawn so that your attorney/s can look after your financial or health affairs or both. The decision is yours. Alternately you can appoint 1 attorney to look after your financial affairs and another to manage your health affairs.

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5. When to start?

An EPOA can start at the time of signing the EPOA document or at some specified time in the future. It can also be limited to a time period.

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6. Limits on powers to be exercised.

The EPOA can be established to provide the Attorney with limits on their powers. By way of example this can include - how much money may be spent or in what circumstances expenditures can be authorized.

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7. Misuse of Enduring Power of Attorney (EPOA).

Unfortunately the misuse of EPOAs happens. Money is misspent on the attorney/s own wants or needs. An elderly parent is left in a residential situation that does not provide for their best interests.

Legal assistance can be provided for the revocation of an EPOA and the appointment of a replacement Attorney/s.

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