Enduring Power of Attorney
Do I need an Enduring Power of Attorney (EPA)?
Yes. Everyone over 18 years should have an EPA, especially:
- Anyone who is facing the prospect of declining health, particularly if their condition affects their ability to make decisions;
- Anyone who is a member of a self-managed superannuation fund.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a document that enables you to appoint a person or entity 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.
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.
It may be necessary for someone interested in your affairs to apply to the Queensland Civil and Administrative Tribunal (QCAT) to be appointed as your decision-maker. This can take time and, in the meantime, your affairs may come to a stand-still.
Enduring Powers of Attorney – essential for members of Self Managed Super Funds
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 EPA in place.
We recommend you consult us before you complete the document for the following reasons:
- There are clauses that can be inserted to better protect your interests
- We can take steps to reduce the risk of the validity of the document being challenged
- We can advise you in deciding who to appoint, the power given and as to when the power should start.