Drafting the most essential document? Only the best will do!

When principals appoint attorneys to act on their behalf, a power of attorney is made. The power of attorney becomes “enduring”, because even when the principal loses capacity after the date of granting the power, the power of attorney remains in existence, hence being called enduring.

Principal
When you create the power of attorney, you are called the “principal”.

Attorney
The person or persons you have appointed to act on your behalf is called the “attorney”.

For example, you were involved in a serious car accident and as a result, you are in a coma. Another example is when you are forced to quarantine and unable to leave the quarantine.

This is when your Power of Attorney (POA) will come into effect, your attorney will act on your behalf to handle your medical treatment and your assets.

To be eligible to be an attorney, a person must:

• have the capacity to make the decisions they are appointed for
• be 18 years or older
• not be your paid carer or have been your paid carer in the last three years
• not be your health provider
• not be a service provider for a residential service where you live
• not be bankrupt or taking advantage of the laws of bankruptcy (if appointed for financial matters)

Please note: your attorney does not have to be a lawyer!

We highly recommend you appoint a person who you can trust to act in your best interests, such as a family member or close friends.

Yes you can.

There is no limit on the number of attorneys you can appoint in an enduring power of attorney, except that you can only appoint a maximum of four joint attorneys for a matter (i.e. you can only appoint a maximum of four people who must agree on all decisions).

Yes you can. You can appoint separate attorneys for your financial matters only, or for personal (including health) matters only.

Personal matters
It includes decisions about your care and welfare, such as where and with whom you live and support services you may need. It also includes legal matters that exclude your financial or property matters.

Health matters
It relates to decisions about your health care, includes:

• medical treatments
• medical procedures
• services to treat both physical and mental conditions.

When you are nearing the end of your life, health matters can also include treatments aimed at keeping you alive or delaying your death (life-sustaining treatments).

Financial matters
It relates to decisions about your financial or property affairs, including:

• paying expenses
• making investments
• selling property (including your home)
• carrying on a business

Yes, you can do so by setting up terms and instructions for your appointed attorney(s).

For example, in personal matters you can set the following limits:

1. My attorney can make all decisions about personal matters except for decisions about the friends and family members I have contact with.
2. I do not consent to my children or their families living in my home, with or without me.

For personal decisions, your attorney may only commence making personal decisions for you when you lose capacity.

For financial decisions, you may nominate when your attorney may begin to make financial decisions for you:

• Straight away after signing; or
• At some other date or occasion, such as once you lose the capacity to make these decisions, or when you are incapacitated by severe disease

Ascent Lawyers can assist in drafting wills and Enduring Power of Attorney to make sure your wishes will be carried out when you lose legal capacity.

We ensure only the most up-to-date forms are used and all information is accurate.

Appoint the Right Person as your attorney
If your attorney is inappropriately appointed or you failed to constrain the assigned rights, your legal rights may be manipulated.

Correct Drafting
Only an accurately drafted Enduring Power of Attorney could protect your legal rights when you lose legal capacity.

1. Think about your views, wishes, and preference for now and the future.
2. Discuss these views with your family and friends
3. Consider who you will appoint as your attorney(s): it must be someone who you trust will safeguard your interests, advocate for you and respect your views, wishes and preferences.
4. Reach out to Ascent Lawyers!

You will have lost the capacity to make a decision if you are not able to:

1. understand the nature and effect of decisions about the matter
2. freely and voluntarily make decisions about the matter
3. communicate the decisions in some way

Yes you can. You can revoke an attorney from acting on your behalf, as long as you still have the capacity to do so. This is called revocation.

You can contact Ascent Lawyers to assist you.

We will help you lodge all the correct forms and take all reasonable steps to inform every attorney affected by this revocation that they are no longer acting as an attorney.

It will end if the principal:

• dies
• gets married
• gets divorced
• enters into a civil partnership
• terminates a civil partnership
• makes an inconsistent document

It will also end if any attorney:

• dies
• withdraws
• becomes a paid carer or healthcare provider to the principal
• becomes incapable
• becomes bankrupt or insolvent

Yes, your appointed attorney is personally accountable and liable for their actions.

This means that if your appointed attorney mismanages or mishandles your matters, whether or not they did it intentionally or negligently, the appointed attorney can be held personally liable and responsible.

You can speak to the Public Guardian. This is a public organisation that has the power to investigate complaints regarding any improper actions of any appointed attorney for financial, health or personal matters.

You can begin proceedings in the court or the Queensland Civil and Administrative Tribunal (QCAT) to recover money and cause the attorney to face criminal charges.