An Enduring Power of Attorney (EPA) is a legal document that appoints someone to manage either your personal and/or financial affairs. The person you appoint is called an attorney. You are known as the principal.
A financial attorney will be responsible for your financial decisions such as the sale of your assets and the investment of your income whereas a personal attorney can make decisions about your education, health and other day to day issues.
There are many benefits to appointing someone as your attorney. If you lose capacity that person can step in to make decisions and manage your affairs on your behalf. EPAs also are really important if you ever need to undergo surgery that involves general anaesthetic or, on the off chance, you have an accident and are unconscious while important decisions need to be made on your behalf. Sometimes it may be that you are away for an extended period of time and need assistance with your financial matters.
In the event that any of these circumstances occur and you find yourself without an attorney and you no longer have capacity, the decision as to who would act in that role will be taken out of your hands and determined by the Tribunal in your particular State.
It is important to know that your appointment of an attorney will cease upon your death. An EPA is a document that only applies while you are alive.
Once you pass away, your nominated executor (or administrator if you do not have a Will) will then deal with your affairs.
When deciding who to appoint as your attorney it is critical to choose someone that you trust completely. Your attorney will have the power to do anything that you could do. For example, they could transfer your property or access your bank accounts.
While each State has its own legislation that provides an attorney must act in your best interests and should always consult with you where possible before making decisions and keep financial records, we often see this fail to occur.
If you have concerns about your attorney or their conduct, whilst you have capacity you can choose to revoke their appointment at any time.
If you or a close family member of the principal have concerns about the conduct of an attorney there are steps you can take to address those concerns.
The most important first step is to document what is happening in a diary so that you can record on a particular day what has happened and the circumstances surrounding it. For example, it may be that you go to visit your loved one in hospital only to be advised that their attorney has restricted his or her visitors.
You can make a complaint regarding the attorney’s conduct to be investigated through the Public Guardian in each state or jurisdiction in Australia. It is important to gather evidence to support what you say the misconduct or failings of the attorney are as this will need to be provided to the Public Guardian. The keeping of a diary will assist you with this.
You can also seek legal advice as to what other steps you might be able to take. For example, when you become aware that the attorney has transferred the property of the principal into their own name, legal proceedings can be commenced against the attorney to have that property transfer recovered/reversed.
Whilst having trust and faith in people is important it is equally important to be alert and aware of the potential for attorneys to abuse their power and exercise coercive control over their principal, who is often vulnerable and reliant upon them.
Signs of elder abuse could include a person becoming more withdrawn, or you not being able to reach them on the phone and maintain contact with them as you had previously. Other signs include the elderly person being taken to a new solicitor or a new Doctor not familiar to them.
It is the responsibility of all of us to protect those most vulnerable in our community from being taken advantage of and from attorneys abusing their power.
Shine Lawyers has a team that practices in Wills and estates and elder abuse. We also assist in taking action against attorneys who have done the wrong thing.
The information on this website is for general information only and are not (and nor are they intended to be) a substitute for professional medical or mental health advice, nor is it used for diagnosis and treatment. You, or anyone you are concerned about, are encouraged to seek professional medical or mental health advice and treatment from suitably qualified medical and clinical practitioners and providers.
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