June 2020

My mother keeps telling me to get an Enduring Power of Attorney but I already have a will and I am young. What is an Enduring Power of Attorney and why do I need one?

It’s fantastic that you have a will but a will is very different from an Enduring Power of Attorney.

A will is a record of how you would like your property divided when you die, and who is responsible for dividing it. An Enduring Power of Attorney appoints someone (called an attorney) to make decisions about you or your property while you are alive but are unable make decisions for yourself. There is an Enduring Power of Attorney for property and one for personal care and welfare.

Enduring Powers of Attorney are recommended, no matter your age. An injury or an illness might mean that you suddenly cannot make decisions about your health or property. An attorney can discuss matters with your medical professionals, they can make sure that your bills continue to be paid, and they can manage any other issues that may arise with your property.

For property matters you can have more than one attorney and, if there is more than one, you can say whether they must make decisions together or whether they can make decisions separately. If you wish, your attorney can also act while you still have capacity to make decisions. This is useful when you can make a decision but cannot carry out it due to illness, injury, or being out of town.

For personal care and welfare matters you can only have attorney and they can only make decisions about you when you have totally lost capacity to make decisions for yourself.

For both kinds of Enduring Power of Attorney you can choose an alternative person to be your attorney, in case the first attorney cannot do it. You can also say whether you want your attorney to discuss matters with anyone before making a decision or who they have to give information to.

If you do not have an Enduring Power of Attorney and you cannot make decisions yourself then an application to the Family Court will be needed. This is expensive and can be a long process, especially if not everyone agrees on who the Court should appoint to make decisions on your behalf. In the meantime bills may not get paid, decisions about your property will not be made and a delay in making decisions about your health or you receiving any non-urgent treatment may occur.

Enduring Powers of Attorney are important at all ages, since illness or injury can happen at any time, but you should only appoint someone that you trust. You will need to see your lawyer to create an Enduring Power of Attorney and it is recommended that you discuss any concerns or queries with your lawyer before deciding who you will choose to be your attorney.