Many people assume that once they have signed a Will, their affairs are fully in order.
That is not so. Your Will only takes effect after death. It does not help if you are still alive but unable to make decisions for yourself.
That is where an Enduring Power of Attorney (EPA) becomes one of the most important legal documents you can have.
There are two types of EPA:
- Property EPA – allowing someone to manage your financial
and property affairs. - Personal Care and Welfare EPA – allowing someone to
make decisions about your health, living arrangements and
personal welfare if you lose the capacity to make those
decisions yourself.
For many families, the Personal Care and Welfare EPA is the document that becomes critical when an unexpected health event occurs.
CONSIDER THE FOLLOWING EXAMPLES.
Margaret, aged 72, suffered a severe stroke and could no longer communicate her wishes. Although her husband had been married to her for more than 40 years, he discovered that he did
not automatically have the legal authority to make all decisions on her behalf. Important decisions regarding her long-term care and welfare became more complicated because no Personal Care and Welfare EPA had been signed.
In another case, a middle-aged father suffered a traumatic brain injury following a motor vehicle accident. His adult children disagreed about the type of care he should receive and where
he should live during rehabilitation. A Personal Care and Welfare EPA could have clearly identified who was authorised to make those decisions.
Without an EPA, family members may need to apply to the Family Court for orders appointing a welfare guardian. This process can involve legal costs, medical evidence, delays and significant stress at a time when families are already dealing with difficult circumstances.
Depending on the complexity of the situation, the costs of obtaining Family Court orders can easily run into several thousand dollars and may be considerably more where there is
disagreement between family members.
Loss of capacity is not limited to old age. It can result from dementia, stroke, serious illness, surgery complications, accidents or other unexpected events. In some situations, the incapacity may be temporary, while in others it may be permanent.
Having a Personal Care and Welfare EPA in place allows you to choose in advance who will speak for you if you cannot speak for yourself. It can provide certainty for family members, reduce
the likelihood of disputes and ensure decisions are made by someone you trust.
An EPA is often just as important as a Will. While a Will protects your wishes after death, an EPA helps protect your interests while you are still alive.
If you have a Will but do not have an Enduring Power of Attorney, or if your EPA has not been reviewed for many years, now will be a good time to seek legal advice.
