One of the key parts of creating an estate plan is establishing an enduring power of attorney (EPOA).

With an EPOA, you (the principal) can give someone (the attorney) the right to make personal, financial, health and legal decisions on your behalf when you’re unable to do so, such as if you become sick or experience an accident.

This might include:

  • Personal: deciding where you live, organising support services
  • Financial: paying expenses, selling your assets
  • Health: authorising medical treatments
  • Legal: making legal decisions (unrelated to finance and property matters)

With an EPOA in place, your attorney can make crucial decisions in a timely fashion. Without an EPOA, there’s no telling who would make decisions on your behalf and how long the process would take.

You get to choose your attorney (although they have to accept the appointment). You can also appoint multiple attorneys and choose how they can make decisions. The options are:

  • Jointly (i.e. all of them must agree on a decision)
  • Severally (any one of the attorneys can make a decision)
  • By a majority
  • By another way (which must be specified)

It’s important you choose your attorney(s) carefully. As the Queensland government warns: “Unfortunately, attorneys may mismanage their role. This could include using your money to pay their own expenses or selling your assets and keeping your money for themselves. Only appoint people you trust to look after your affairs.”

What happens if you don’t create an EPOA, but you lose capacity unexpectedly?

If there is no one properly appointed to deal with your affairs and you lose capacity, then your family or friends might have to apply through the state Civil and Administrative Tribunal (CAT) to get authority to make decisions or drive your finances for you. Here in Queensland this is known as QCAT. And, as with all government funded departments and processes, there can be quite a wait before an administration order is issued. The tribunal process always tries to be fair and careful in their appointments but you may end up with someone managing your affairs that you would not necessarily have chosen, so it really is better to make an EPOA of your choosing.

Review your EPOA regularly

Just like writing a will, appointing an EPOA should not be a ‘one and done’ activity.

Instead, you should check your EPOA every year, to ensure it remains up to date. You should also review your EPOA whenever significant life events occur.

For example, you might want to remove someone as an attorney if your relationship deteriorates, they move overseas or their health deteriorates.

You might also consider swapping out attorneys if your financial or health position changes, because different people might then be better placed to manage your affairs.

How to create or update an EPOA

One of the big mistakes people make with EPOAs is procrastinating. Failing to create or update an EPOA is risky, because you never know when you might need it.

It’s important you seek legal advice before creating or updating an EPOA, as your lawyer will explain your options, guide you through the process and prevent you from making costly mistakes.

Generally, you don’t have to register your EPOA anywhere – unless you want to give your attorney the power to deal with land in Queensland on your behalf, in which case your EPOA must registered with the Queensland Titles Registry

It’s generally a good idea to keep your EPOA in a safe place and to give certified copies to your lawyer, attorney, bank and doctor.