This article is Part 2 of 5 related to Life Planning. We are covering the difference between Wills, Powers of Attorney and Enduring Powers of Attorney… plus a few things to consider when having your Enduring Power of Attorney drafted. Should you need to review your Will, Power of Attorney or Enduring Power of Attorney, please contact our Estate Planning team on 4638 1133.
Many people who have an Enduring Power of Attorney (EPOA) in Queensland believe that their attorney* can make financial decisions, as well as medical decisions. Unfortunately, all your attorney* is doing when they wave your EPOA at your doctor is keeping them cool.
*Attorney in this article refers to the person you have nominated to take care of your personal matters. This could be your spouse, family member, friend or other trusted professional. Attorney in this article does not refer to your lawyer.
What an Enduring Power of Attorney covers
More often than not, people confuse Wills with Enduring Powers of Attorney and a General Powers of Attorney.
An Executor of your Will is not always your Power of Attorney or Enduring Power of Attorney. These are separate documents, which provide the Executor or Attorney with different levels of authority.
What’s the difference between a Will, Enduring Power of Attorney and a General Power of Attorney?
Wills are about your estate planning and how you’d like your Executor to distribute property upon your death.
General Power of Attorney is about authorising someone (referred to as an ‘attorney’) to act on your behalf when you are unavailable, for example are overseas on holiday. A General Power of Attorney ceases once your have lost capacity.
Enduring Power of Attorney allows you to appoint someone (also referred to as an ‘attorney’) to make decisions on your behalf, with their authority to act to endure, or continue, beyond you having lost capacity or becoming impaired. However, this does not include making medical decisions!
Should you have someone to make medical decisions on your behalf?
If for some ‘God forbid’ reason (car accident, stroke, brain cancer), you are unable to make medical decisions on your own, then you’ll need an Advance Health Directive (AHD) — which is in addition to your Enduring Power of Attorney.
Sometimes referred to as a ‘Living Will’, this legal document enables you to nominate a family member or friend to make medical decisions on your behalf when you can’t.
An AHD also allows you to:
- Detail what medical treatment or health care you want if you can no longer make decisions for yourself. For example – you can decline certain medical treatment or to receive all available treatment; and
- Record information relating to health conditions, allergies, religion, spiritual or cultural beliefs that could affect your care.
How to make an Advance Health Directive
While overwhelming to think about, it’s important to complete this document while you still have capacity. Otherwise, your family member or friend may need to seek appointment from the Queensland Civil and Administrative Tribunal to make decisions for you. This process can take up to three (3) months, cost thousands and in the end, may be given to the Office of the Public Guardian or the Public Trustee.
To allow your family to act on your behalf, request an Advance Health Directive to be made when making your Enduring Power of Attorney. An AHD should be created along with your Enduring Power of Attorney & Will if you’ve not created these as yet. If you live in Toowoomba or the South Burnett Region, please feel free to contact one of our Wills & Estate team members to make your Advance Health Directive on 4638 1133.
If you have an Enduring Power of Attorney and an Advance Health Directive
Make sure you give a copy to the family member/s or nominated party. We will also maintain a copy of any Advance Health Directive made for you in our safe custody.
And should that ‘God forbid’ situation occur, an AHD will enable someone, chosen by you, to immediately act in line with your wishes.
For more details about Wills, Estates, Powers of Attorney and Advance Health Directives: please read our Life Planning articles.
About the author:
Troy Krahenbring is Wonderley & Hall’s Oakey Lawyer who specialises in conducting matters before all Commissions, Tribunals and Courts. He assists clients with Criminal, Business, Property Law and Estate matters. When Troy’s not in the court room, he’s making custom timber furniture.
Wonderley and Hall are Toowoomba Lawyers who’ve served the Darling Downs, South Burnett and Surat Basin region for over 125 years. As a full service law firm, we provide Estate Planning, Criminal Law, Family Law, Property and General Litigations advice. If you need legal advice, please contact our team on 4638 1133.
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