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Welcome to The OMB Law Board, the podcast where legal insights meet practical advice. Hosted by Simon Bennett, Managing Partner at OMB Solicitors, this show delves into what you can expect when engaging with OMB Solicitors. Specialising in property law and commercial law, OMB also boasts dedicated teams for estate planning, contested estates, body corporate matters, litigation, and family law.
Each episode features in-depth discussions led by experienced team leaders, some with over 20 years of expertise. You'll gain valuable knowledge on initial consultations, cost assessments, timelines, and the importance of clear communication and confidentiality in legal matters.
Join us to break down barriers and navigate your legal journey with confidence. Tune in for expert advice, client stories, and tips on how to prepare for your legal needs. The OMB Law Board is your trusted source for all things legal.
00:00:06:03 - 00:00:28:17
Unknown
Welcome back to the OMB Law Board. Today. I've got Harley with me, senior associate in our Estate Planning team. Welcome back. Haley, thanks for having me back. Someone good to be here again. Holly, in a previous episode, you talked about the importance of wills. But we didn't get on to an enduring power of attorney and why it is the most vital document whilst you're alive.
00:00:28:19 - 00:00:45:01
Unknown
That's right. We didn't. So this is the document that everyone needs. But no one's really talking about as much as I should be. So stick with us, and we're going to tell you all about the enduring power of attorney, why it's a vital document, and how it works. So, Harley, let's
00:00:45:01 - 00:00:49:10
Unknown
dig into it a little bit and tell us about what is an enduring power of attorney.
00:00:49:12 - 00:01:28:07
Unknown
So an enduring power of attorney is an entirely separate legal document from you will. So on the one hand, you've got your will, which is essentially, for the most part, dealing with how your estate is going to be distributed. And it's appointing an executor whose job is to see that that happens. Your enduring power of attorney, on the other hand, is where you can appoint someone who's a decision maker for you, and they're able to make decisions about your personal health and financial matters in circumstances where you aren't able to make those decisions for yourself anymore.
00:01:28:09 - 00:02:06:21
Unknown
So when does the enduring power of attorney apply? When can they make these decisions for you? Most of the time, they'll be set up in a way whereby the power that person has to make decisions will only start if and when you lose capacity, or during periods that you lack capacity. So if you're in an accident, you suffer a medical episode, or if you developed something like dementia, then your power of attorney might kick in or activate and your substitute decision maker can step in and they can make all those other decisions you'd otherwise be making for yourself.
00:02:06:23 - 00:02:16:17
Unknown
Okay, so let's look at the difference. With the will. It applies once you've passed away. Yes. So it doesn't actually affect you so much as your loved ones.
00:02:16:18 - 00:02:35:12
Unknown
But this power of attorney, this applies Walshaw law. That's exactly right. Yeah. So an enduring power of attorney, like I said before, typically will take effect or start when you lose capacity, and that power will continue up until the point that you pass away.
00:02:35:14 - 00:02:56:05
Unknown
At that point, it's revoked. It kicks over to your will. So for some people, that might never happen, which is good. That's what we hope for, you know, we hope for the best. We plan for the worst thing. But for some people, they could go through years and years of being incapacitated where it's necessary for someone else to make decisions on their behalf.
00:02:56:07 - 00:03:09:23
Unknown
So if I'm in an accident or I have an illness, that would be a usual case that this power of attorney might kick in. Yeah, that's right. All right. But doesn't my wife or my children just get that power to step in and look after me?
00:03:10:01 - 00:03:23:20
Unknown
Actually they don't. And that's a bit of a common misunderstanding, is that a spouse child, next of kin, they do not automatically have power to make decisions on your behalf.
00:03:23:22 - 00:03:54:09
Unknown
If you can't do it for yourself. That said, in very limited circumstances, you can have someone who's known as a statutory health attorney who can make decisions about your health matters. Again, that's in limited circumstances, and that does not apply to personal matters or financial matters. So explain to me the difference. On an enduring power of attorney you talked about, it can be for personal or for financial.
00:03:54:10 - 00:04:21:19
Unknown
What's the difference. So personal matters is going to relate to lifestyle decisions effectively. And that will be things like where and with whom you live, the sorts of care and support services you receive, that sort of thing. Financial matters, on the other hand, is going to be things like buying and selling property making or managing investments, paying bills and other expenses, or even carrying on a business.
00:04:21:19 - 00:04:45:21
Unknown
So two completely separate things. And then we've got the health related matters, which again, a separate from personal matters. And that'll be things like, organizing medical treatments, end of life care, that sort of thing. I'm seriously concerned if I don't have an enduring power of attorney who's making the health decisions for me when I can't make them for myself.
00:04:45:23 - 00:05:19:00
Unknown
Again, comes back to statutory health attorney. There are some circumstances in which you can have a person there by default. If you already have an enduring power of attorney, that takes priority. If you have an advance health directive, which is another document we can talk about another day, that person appointed there will take priority again. But the I think the core of the issue here that the main issue is what happens where we don't have one at all.
00:05:19:02 - 00:05:39:09
Unknown
You know, we might be covered to an extent for health related matters, but your personal financial matters, we've got a problem there. There's no one appointed legally who can make those decisions. Okay, well, let's drill down on that. Harley, why don't you give me the three biggest issues that come up if I don't have an enduring power of attorney?
00:05:39:13 - 00:05:40:04
Unknown
Yeah,
00:05:40:06 - 00:06:02:11
Unknown
well, I think the thing that people are going to feel first will be the disruption and the delay to the management of their everyday affairs. You could have bank accounts that have frozen. You could have bills or other expenses that go unpaid. There could be delay to, you know, the management of a business or your property affairs.
00:06:02:15 - 00:06:24:19
Unknown
So we've got some, some problems right off the bat that could lead to loss of income, could lead to lots of opportunities for business opportunities. And you could fall into a very is in terms of paying your bills and other expenses. Pretty serious. Yeah. What else. Well we've always in that sort of situation we've got to try and fix that problem.
00:06:24:19 - 00:06:48:18
Unknown
We've got to try and find an appropriate person who's going to act. Typically what will happen then is that a family member or family members will need to apply to the Queensland Civil and Administrative Tribunal, also known as Q CAS, to become appointed as an attorney. Effectively, when you go to Q CAS, you're not an attorney. You get appointed as an administrator and a guardian.
00:06:48:19 - 00:07:09:20
Unknown
That process can be timely, it can be costly. And when you're a family member who is dealing with a situation where a loved one is, you know, they've been in an accident or they're dealing with some serious health issues, that is a really traumatic thing to have to go through. And it's something that you want to avoid at all costs.
00:07:10:00 - 00:07:18:10
Unknown
Absolutely. So how easy is it to avoid that? How difficult is it to get a enduring power of attorney?
00:07:18:12 - 00:07:47:16
Unknown
It's actually very easy to get an enduring power of attorney prepared. The best way to start would be to go and have a conversation with your lawyer. You know, go through your estate planning lawyer, get some advice. The most important thing to consider when you're preparing an enduring power of attorney is who you're going to appoint, who you are going to empower, with the ability to make decisions for you when you are most vulnerable.
00:07:47:18 - 00:08:16:09
Unknown
So I think the most important consideration for people to make is appointing someone they trust. And they can rely upon who are going to be acting in their best interests, where there's very little risk or no risk, that that person will be preferring their own interests over yours. That's what we want to know. And if you've got some examples that you could share with us of where you've seen, you know, the importance of the enduring power of attorney, how it
00:08:16:11 - 00:08:33:03
Unknown
Yeah. So. So Mum or Dad getting a little bit older, health is starting to deteriorate and the need arises that, that they've got to go into an assisted living arrangements or into an aged care facility. Yeah.
00:08:33:05 - 00:08:45:05
Unknown
If the point comes that they lose capacity and can't make decisions for themselves anymore. But you know that the family home needs to be sold in order to finance that new accommodation.
00:08:45:07 - 00:09:08:07
Unknown
That is where we have a bit of a problem legally, mum and dad can't sell that property because they don't have capacity and legally neither can you because you are not appointed as the attorney. Yes, right. And that is where we might have to go to you to get appointed. And all that can be avoided with a little bit of pre-planning and enduring power of attorney.
00:09:08:08 - 00:09:22:22
Unknown
Their attorney can then sign the contract and sell the property and put mum and dad in assisted living. That's exactly right. That's that's exactly the sort of situation that an enduring power of attorney and having the right one set up can avoid.
00:09:23:00 - 00:09:34:02
Unknown
Well, there you have it. At the outset, we talked about the importance of an enduring power of attorney whilst you're living and, the difference between that and having a will.
00:09:34:07 - 00:09:38:23
Unknown
And, Harley, you've explained to us why it is so important and also how simple it is.
00:09:39:01 - 00:09:52:11
Unknown
That's exactly right. So give our Wills and estates team a call today. We can give you advice in relation to setting up an enduring power of attorney. Some considerations that you want to make when you're doing so and set
00:09:52:11 - 00:09:55:23
Unknown
you up so that you can protect yourself and protect your family.
00:09:56:01 - 00:09:57:04
Unknown
Thank you so much, Harley.
00:09:57:06 - 00:10:16:00
Unknown
And I've got a question for our viewers and listeners. Do you know who's going to make decisions for you if something happens, if you're involved in an accident or you become ill, who's going to make decisions for you? Are you covered? And do you have any enduring power of attorney? Because if you don't, contact Harley and our Estate team here at OMB.
00:10:16:02 - 00:10:21:14
Unknown
So thanks so much for sticking with us. We look forward to seeing you next week on the OMB Law Board.