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Being an Enduring Power of Attorney… What to do now?

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This is Brian Herd from CRH Law, speaking to you today about being an enduring power of attorney. What do you do now?

Many of us are familiar with being the executor of someone’s will, or, indeed, having been appointed the executor of someone’s will. We may have actually performed the role, but many of us are also enduring powers of attorney for someone, where that person has appointed us to make decisions for us, should we ever lose our capacity to do so. Very few of us actually experience the role itself, so what is it like to be an enduring power of attorney, and one day, realize that you actually have to perform the role? You have to take on the responsibility of making decisions for someone else, who has appointed you to do so when they’ve lost their capacity.

What it basically means is you stand in their shoes as if you were them, so you become their decision maker as if you were them. What that means, of course, is you have to embark on a fossicking exploration exercise to find out as much as you can about their affairs, because, in the end, you’re going to be responsible for their circumstances, and you have to make decisions and act in their best interests.

I’m the enduring power of attorney for a number of people, and when I’ve been appointed and my role has been triggered, I go on a fossicking exercise to find out everything I can about their affairs, from their lifestyle, their friends, their family, their finances. It’s a very important thing to do, because you need to know about them in order to make properly informed decisions about them. For example, I’d find out whether they have a will, try and find where it is, have a look at it, and assess whether, in fact, it needs to be changed. Find out about their finances, their bank accounts, their superannuation, their insurance policies. Anything to do with their finances, you need to find out about, and then communicate with the appropriate people about.

You may also need to determine, for example, where they are going to live, their future lifestyle issues, such as staying where they are, or moving into some other form of assisted living or supported living accommodation. You have the responsibility now, because of this power that you’ve been given and bestowed with, to both address the concerns about what information you need, and, also, to then make the right decisions for them. This could mean, also, for example, contacting any financial advisors, legal advisors, Centerlink, for example, or even the tax office to determine whether they have been compliant with their tax affairs.

In the end, it’s not just a good idea to do these things, once your role has been activated, it’s a legal duty for you to act in the best interests of the person for whom you’ve been appointed. For that reason, get some advice. You can come to us, for example, and get some advice about what to do and how to do it, and we’ll give a free checklist to go with you as well. Remember, the cost of you getting advice, as an enduring power of attorney, is a cost that the person who appointed you needs to bear, not you personally, so you can use their money to get advice for you to do the right thing by them. It’s a really good opportunity to get the right things done.

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