As solicitors a question we are frequently receive is “what decisions will be made and who will make these decisions if I lose capacity?”
When an adult loses capacity and has not legally prearranged for someone to make decisions for them the Office of Public Guardian may be appointed to take control of their affairs. Alternatively, if their loved ones wish to be appointed as their guardians or administrators they may apply to the Guardianship Diversion of the Queensland Civil and Administrative Tribunal. This can be a stressful and expensive process.
Clients that want peace of mind over who will make decisions for them, and what decisions should be made can grant an ‘Enduring Power of Attorney.’ An enduring power of attorney allows you to appoint someone that you trust to act on your behalf for financial and/or health and personal matters.
However, an Enduring Power of Attorney is an extremely powerful document and it is always worthwhile to reflect on the actual authority that it gives. Your appointed Attorney will commonly have the power to do anything that you would lawfully have the power do, including access bank accounts, deal with property and investments, even apply for a divorce on your behalf!
This authority can perhaps best be appreciated by quoting Mr Justice Barrett of the NSW Supreme Court: “…is it to my benefit and in my interests to allow another person to have control over the whole of my affairs so that they can act in those affairs in any way in which I could myself act – but with no duty to seek my permission in advance or to tell me after the event, so that they can, if they so decide, do things in my affairs that I would myself wish to do (such as pay my bills and make sure that cheques arriving in the post are put safely into the bank) and also things that I would not choose to do and would not wish to see done – sell my treasured stamp collection; stop the monthly allowance I pay to my grandson; exercise my power as appointor under the family trust and thereby change the children and grandchildren who are to be income beneficiaries; instruct my financial adviser to sell all my blue chip shares and to buy instead collateralised debt obligations in New York; have my dog put down; sell my house; buy a place for me in a nursing home?” Szozda v Szozda [2010] NSW SC 804 [34]
It is critically important that the person you appoint as your attorney should be someone that you can completely trust. Before executing a power of attorney, it is always best practice to seek proper legal advice from a solicitor.
Chris Barron
Solicitor, Collas Moro Ross
Firm Peg:
Collas Moro Ross are a prominent Gold Coast firm that have been serving the community since 1951.
They are the honorary solicitors to numerous organisations that support elderly people such as Gold Coast Legacy and are highly experienced in providing expert advice in areas affecting seniors such as Powers of Attorney, Wills and Estates Planning, entering Retirement Home contracts and preventing Elder Abuse.
Call Chris now to ask about any questions you may have on this article (07) 5539 9099.