We often meet clients who are considering an Enduring Power of Attorney (EPOA) but aren’t sure why it’s so important or are not aware of (or how to avoid) the risks that can arise if it’s not done properly. Here’s what you need to know to protect yourself and your loved ones.

Without an EPOA, families often face delays, disputes, and even the appointment (and costs) of the Public Trustee, who may not know your wishes. In NSW alone, over 19,000 matters went before the Guardianship Tribunal each year, and the number is increasing. A well-prepared EPOA can help your family avoid this stressful and costly process.

The Importance of an Enduring Power of Attorney

Planning for the Unexpected

None of us like to think about losing capacity, but the reality is that 1 in 4 Australians over 65 will need paid care at some point. An EPOA ensures that if you become unable to manage your affairs, someone you trust can step in and make decisions on your behalf.

Avoiding Crisis and Public Trustee Intervention

Without an EPOA, families often face delays, disputes, and even the appointment of the Public Trustee (NSW Trustee and Guardian), who may not know your wishes. In NSW alone, over 19,000 matters went before the Guardianship Tribunal in a single year, with more than half resulting in the Public Trustee being appointed. A well-prepared EPOA can help your family avoid this stressful and costly process.

How a Properly Drafted EPOA Reduces Risks

Minimising Family Disputes

Clear Instructions: By documenting your wishes, such as how you want your assets managed, your preferences for care, and who should make decisions, you reduce the chance of misunderstandings or disagreements among family members. At Eastern Hill we provide a comprehensive Letter of Wishes template, together with express powers in your EPOA to clearly set out the powers and obligations of your attorney.
Choosing the Right Attorney: Appointing someone who is trustworthy, available, and able to handle conflict is crucial. Avoid appointing multiple attorneys unless absolutely necessary, as this can create confusion and conflict.

Protecting Against Elder Abuse

Professional Witnessing:

In NSW, only solicitors or court officials can witness an EPOA. We are obliged to ensure (and must attest to that fact) that the person making the EPOA understands the document and is not under duress, reducing the risk of abuse.

Capacity Checks:

Solicitors are trained to assess capacity and look for signs of undue influence or abuse. They can recommend a medical check-up if there’s any doubt, providing extra protection.

Planning for Aged Care and Financial Decisions

Letter of Wishes:

Including a simple letter outlining your preferences for care, living arrangements, and financial management can guide your attorney and help avoid disputes or intervention by authorities.

Regular Reviews:

Because life changes, so should your EPOA. Review your documents regularly, especially after major life events like retirement, divorce, or changes in health.

Real-Life Lessons: What Can Go Wrong

Family Conflict:

Cases show that even well-meaning family members can end up in dispute, especially if your wishes aren’t clear or if there’s a perception of unfairness.

Public Trustee Appointment:

If there’s a dispute or lack of clarity, the Tribunal may appoint the public trustee (NSW Trustee and Guardian), who will make decisions without personal knowledge of your wishes, and charge fees for doing so.

Cross-State Issues:

If you move interstate, your EPOA may not be recognised. It’s important to update your documents if you relocate.

Practical Steps for a Safe and Effective EPOA

Don’t Treat It as a Simple Form:

An EPOA is a powerful document, take the time to consider your choices and discuss them with your solicitor.

Document Your Wishes:

Even a short, signed letter can make a big difference in guiding your attorney and preventing disputes.

Choose Your Attorney Carefully:

Consider their ability to act in your best interests, handle conflict, and manage your affairs responsibly.

Seek Professional Advice:

Work with an experienced estate planning solicitor who understands the risks and can help you put robust protections in place.

A well-drafted Enduring Power of Attorney is one of the most important steps you can take to protect yourself and your family. At Eastern Hill Estate Planning, we’re here to help you avoid the pitfalls, so you can have peace of mind for the future.

Why an Enduring Power of Attorney is Essential - and How to Get It Right