It is a common misconception that if you lose the capacity to make your own decisions, your spouse or family member will automatically be able to handle your financial affairs.
THIS IS INCORRECT.
In Queensland, there is no automatic appointment of a person to assume control of the financial matters or affairs of an adult who has lost capacity.
A family member can only take control of the financial affairs of an adult who has lost capacity if either:
- A person authorises an Attorney by signing an Enduring Power of Attorney (“EPOA”) before the person loses capacity; or
- By the Queensland Civil and Administration Tribunal (“QCAT) appointing an Administrator or Guardian, upon an Application being made.
Consider a tradesman who has not made an EPOA and suffers brain damage as a result of a work accident which causes the tradesman to become mentally incapacitated.
His wife has no authority to operate any of her husband’s business accounts.
In turn, she is unable to access funds, which causes difficulties for the business to continue to trade, pay outgoings and expenses, including mortgage repayments, when they fall due.
This situation could have been avoided if an EPOA had been put in place with savings of stress, time, costs and uncertainty.
An EPOA should be reviewed regularly and viewed as an insurance policy due to the protection that it provides, should an unfortunate event occur.
Sherry Kelly heads the Wills, Enduring Power of Attorney and Estate Administration practice of Colville Johnstone Lawyers, working alongside Nicole Khoury. They both provide straight to the point, down to earth advice on the importance of an Enduring Power of Attorney.
Queensland Law Society is concerned about the decision to trial Justices of the Peace (Qualified) to preside with legally experienced Justices of the Peace over certain QCAT matters.