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Week 1: Enduring Power of Attorney - Coggle Diagram
Week 1: Enduring Power of Attorney
A document which allows the appointment of a person on behalf of another to make decisions regarding important personal and financial matters.
The person making the EPOA is called the Principal
The person or persons appointed to make decisions on the Principal/s behalf are called Attorneys
An EPOA is governed by the
Power of Attorney Act 1998
(Qld)
Pursuant to s 32(1) of the POA Act, by EPOA, an adult may
Authorise 1 or more persons who are eligible attorneys to do anything in relation to 1 or more financial matters or personal matters for the principal that the principal could lawfully do by an attorney, if the adult had capacity for the matter when the power is exercised
Provide for terms or information about exercising the power.
S 32(1) provides that an EPOA power for a matter
is not
revoked by the principal becoming a person with impaired capacity for the matter.
This is unique to the EPOA
S 41(1) provides that a principal will have capacity to make an EPOA only if the principal is capable of making the EPOA freely and voluntarily and understands the nature and effect of the enduring power of attorney.
Decisions
An attorney can make decisions in relation to personal matters and financial matters.
Sch 2
of the POA ACT defines what person and financial matters include.
Who may be appointed
S 28 of the POA Act provides that an eligible attorney means a person who:
has capacity and is at least 18 years of age
is not, and has not been with the previous three years. a paid carer for the principal, and
is not a health provider for the principal; and
is not a service provider for a residential service where the principal is a resident; and
if the person would be given power for a financial matter - is not bankrupt or taking advantage of the laws of bankruptcy as a debtor un the
Bankruptcy Act 1966
(Cth) or similar law of a foreign jurisdiction
An Attorney's Power
With respect to financial matters. A principal may specify in an EPOA a time, when circumstances in which, or occasion on which, a power for a financial matter is exercisable (s 33(1) POA Act)
If an EPOA does not specify a time when circumstances on which a power comes into existence, then the power becomes exercisable once the EPOA is made (s 33(2) POA Act)
If an attorney's power for a matter depends on the principal having impaired capacity for a matter, a person dealing with the attorney may ask for evidence, for example a medical certificate, to establish the impaired capacity (s 33(5) POA Act)
Power for a matter under the EPOA is exercisable during any or every period the principal has impaired capacity for the matter and not otherwise. (s33(4) POA Act)
General Principals
When acting on the principal's behalf, an attorney should always be guided by the General Principles found in Chapter 1A of the POA Act