What happens if there is no Enduring Power of Attorney

This is article 3 of 5 related to Life Planning. We recently discussed what an Enduring Power of Attorney covers. This article is about what happens if there is no Enduring Power of Attorney in place. To appoint an Enduring Power of Attorney for your personal and financial needs, please contact Troy on 4638 1133

Just because you’re married, related or care about a person who’s unfortunately had an accident, stroke or life altering disease like dementia – it doesn’t mean you can make personal or financial decisions on their behalf.

Typically, having an Enduring Power of Attorney (EPOA) in these circumstances enable the person(s) appointed to act on your behalf – for free.

What happens if you don’t have an Enduring Power of Attorney in place?

With no EPOA in place, then a friend or relative may step forward to assist… but before anything can happen, they will need to apply to the Queensland Civil and Administrative Tribunal (QCAT) to be appointed as your Administrator (to make financial decisions) and/or your Guardian (to make personal decisions).

This process is complex, takes at least 3 months for QCAT to make a decision on and can cost thousands.

If no-one steps forward to take on the role of Administrator and/or Guardian, the Public Trustee will step in as Administrator to manage your affairs or the Office of the Public Guardian (OPG) will step in to make your personal decisions for you. As a division of the State Government, the Public Trustee will typically charge anywhere from $5,000 to $15,000 per year – sometimes more, depending on your circumstances!

How to Apply to be a Guardian & Administrator

When there is no Enduring Power of Attorney in place and you would like to self nominate to be the Administrator and/or Guardian of your family member or friend, you will need to:

  • agree to the duties of a guardian and be competent enough to carry them out;
  • be over the age of 18;
  • not have a criminal record;
  • not be a paid carer or health provider for an adult;
  • have interests that are unlikely to conflict with the person you are applying to take care of;
  • complete QCAT’s Administrator/Guardianship for adult matters form based on your circumstances; and
  • Prepare a detailed affidavit (usually in the range of 6 – 10 pages or so) setting out why you should be appointed instead of the OPG or anyone else.

Taking on the responsibility for being a Guardian

If you’ve been approved by QCAT (which can take up to three (3) months to find out), you’ll be able to make the following decisions on behalf of your family member or friend:

  • where they live and other general day to day issues;
  • what support services they can receive and general health care matters; and
  • with whom they may have contact or visits with.

If you want to make financial or property decisions, then you’ll need to be appointed the Adult’s Administrator.

Overwhelmed by the Application process?

In an ideal world, we’d like for all adults to have an EPOA in place. This way, the nominated person(s) can act immediately when a person is most in need.

However, if you have a family member or friend over the age of 18 caught in a situation where their decision making ability is impaired, then please contact one of our Wills & Estates team members on 4638 1133.

They’ll assist you through the process and make sure your 40+ pages of forms and your affidavit are completed in a way that maximises your prospects of being appointed, rather than it being referred to a third party organisation, such as the Public Trustee or the OPG.

Making “Life” decisions before it happens can be difficult. So, if you’d like to learn more about Estate Planning, Wills, Superannuation or a Power of Attorney, 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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