What happens if your Enduring Power of Attorney loses capacity?

An Enduring Power of Attorney (EPOA) is a legal document that allows someone (the principal) to appoint another person (the attorney) to make decisions on their behalf, particularly in financial and legal matters, even if the principal loses mental capacity. However, if the appointed attorney also loses capacity, there are typically provisions in the EPOA or relevant laws that address this situation.

The specific procedures and consequences can vary depending on the jurisdiction and the language used in the EPOA document, so it’s important to consult local laws or seek legal advice for precise information. In many cases, there may be alternative attorneys named in the document, and they may step in if the primary attorney becomes incapacitated. If there are no alternate attorneys designated, the court may need to get involved in appointing a replacement attorney or take other appropriate actions.

Specifically in Queensland, section 22 of the Powers of Attorney Act 1998 provides that if an attorney becomes a person who has impaired capacity, the power of attorney is revoked to the extent it gives power to the attorney.

It’s crucial to carefully draft an Enduring Power of Attorney with the assistance of legal professionals to ensure that potential scenarios, including the incapacity of the attorney, are adequately addressed in the document. Additionally, regular reviews and updates of the document may be necessary to reflect any changes in circumstances or preferences.

For advice in relation to powers of attorney, contact Jessica Murray at jessicam@qbmlaw.com.au