Terms for your Enduring Power of Attorney you haven't considered

An Enduring Power of Attorney (EPOA) is a critical document that lets you appoint someone to make decisions on your behalf for personal, health, or financial matters if you become incapacitated. While many people use standard forms from the Queensland Department of Justice and Attorney-General, these templates often lack important clauses that can be crucial in real-life scenarios. Here are some additional terms you might not have considered for your EPOA. 

1. Conflict Transaction Clause 

A conflict transaction occurs when the attorney’s actions may conflict with the best interests of the principal. Without specific authorization, such transactions could be challenged. Here are some examples of when this clause can be helpful: 

• Support for a Dependent: If a child lives with the principal, the attorney may need to use the principal’s funds to maintain the household or support that child. Including a specific provision allowing this ensures the attorney can act without risking a legal challenge. 

• Spousal Maintenance: Allowing the attorney to continue to support a spouse from the principal’s assets, even after taking on the decision-making role, can be beneficial. 

• Assisted Living Arrangements: In some cases, selling a property to fund assisted living could be technically seen as a conflict. Including a provision that permits such actions can avoid disputes later. 

This clause helps eliminate uncertainty and reduces the risk of legal disputes during the term of the EPOA or after the principal’s death. 

2. Permission to Seek Financial and Legal Advice 

It’s wise to explicitly allow the attorney to use the principal’s funds to seek legal, financial, or taxation advice as needed. Here’s why this clause matters: 

• Informed Decision-Making: The attorney may face complex financial matters or legal issues and may need expert advice to act in the best interest of the principal. 

• Minimize Risk: It ensures that the attorney makes informed decisions and can protect the principal's assets better. 

By including this clause, you ensure that your attorney has the support needed to manage your affairs properly. 

3. Temporary Guardianship Provision 

A temporary guardianship clause is particularly important if the principal is the sole carer for a minor child. This clause can: 

• Authorize Day-to-Day Care: It allows the attorney to make decisions about the child’s daily life, such as picking them up from school or managing healthcare needs. 

• Ensure Continuity of Care: In situations where schools or medical providers require authorization from a guardian listed on official documents, this clause can streamline the process. 

This provision ensures that children are cared for without unnecessary legal hurdles if the principal becomes incapacitated. 

4. Reactivation Clause 

When a principal regains capacity, restoring decision-making powers can be challenging. In Queensland, it often requires an application to QCAT for a declaration of capacity. A reactivation clause can help: 

• Avoid Bureaucratic Delays: If a medical practitioner certifies that the principal has regained capacity, this clause can automatically restore decision-making powers to the principal without needing a formal QCAT declaration. 

• Prevent Legal Complications: In cases where capacity is disputed, a clear reactivation clause can streamline the process and reduce the risk of a lengthy legal battle. 

This clause ensures a smoother transition back to the principal once they have recovered. 

Why Custom Clauses Matter 

The standard EPOA forms do not cover these additional terms, but including them can provide better protection for both the principal and the attorney. Here’s why these clauses are significant: 

• Prevents Legal Disputes: Adding specific terms can help clarify the attorney's powers and prevent misunderstandings or legal challenges. 

• Provides Flexibility: Life is unpredictable, and these clauses help ensure that the EPOA can adapt to different circumstances. 

• Protects the Attorney: By giving clear guidance, these terms help the attorney act confidently within the scope of their authority. 
  

Consult an Experienced Legal Practitioner 

If you’re using a standard EPOA template, you might be missing out on these crucial clauses. Consulting a lawyer experienced with Enduring Power of Attorneys and estate planning can help you customise your EPOA to better suit your unique situation. 

If you have questions or want to explore additional terms for your EPOA, you can book a consultation with Vicca Law. Visit www.viccalaw.com.au or email Lidia at lidia@viccalaw.com.au to discuss your options.