Confessions of an Estate Planner: Part 8 Enduring Powers of Attorney

I briefly touched on the topic of Enduring Powers of Attorney Part 7 (Crimes against the Elderly).

Enduring Powers of Attorney (EPA)

An enduring power of attorney enables you to appoint a representative to make financial (and other) decisions on your behalf, should you become incapacitated.

It is a legal document in which you are able to nominate someone you trust to handle your affairs, should you lose the ability to make decisions for yourself. Without an enduring power of attorney, there may be nobody with legal authority to manage your affairs and make decisions on your behalf.

Advance Health Directives (AHD)

An advance health directive is a document that allows you to clearly state your wishes and give directions about how you would like your body to be treated. For instance, you may wish to stipulate:

• treatments you don’t wish to receive if your illness is terminal
• medical procedures you don’t wish to receive due to cultural beliefs
• the extent to which you would allow medical intervention to keep you alive

An advance health directive will give your family support and peace of mind, by clearly communicating your wishes. You also have the option of nominating a representative for health and medical matters.

Planning for Dementia

In 2018, there are 250 people diagnosed every day with dementia in Australia. 

This figure is expected to rise. 

It makes a lot of sense to put a plan in place when you are in complete control of all of your faculties – a plan that deals with the  worst things that can happen to you. 

Many focus on getting their wills right.  Whilst that is essential, my view is that your EPA and AHD are much more important.  The reason is that you are still alive and someone else is making decisions for you about the way you will live and die and the way your money will be spent or given away.

Whilst they appear to be so, EPAs and AHDs are not simply pro forma documents you pick up at the newsagency and get signed up. 

Deep Thought

A lot of thought should go into:-

• who you will trust with making decisions about your personal and health care and medical treatment;
• who you will trust with making decisions about your finances;
• who will succeed your first choice attorney/s (if they become incapable or die);
• any limitations you wish to place on your attorney/s;
• whether you authorise your (some or all of your) attorneys to enter into conflict transactions or not?
• appointing more than one attorney (2 is better than 1) – if you want more than 2 must they act unanimously or by majority or can they act severally?
• will your chosen attorneys have an conflicts of interest (making their job difficult or impossible) – for example your attorney may (to the detriment of your intended beneficiary and to the benefit of your attorney):-
  • renew (or fail to renew) a lapsed Binding Death Benefit Nomination; or
  • revoke or vary or make a new a non-lapsing Binding Death Benefit Nomination.

EPAS and Blended Families

An all too common situation that arises is where a parent has made a Binding Nomination in favour of a child from a previous marriage and they have appointed their present spouse their attorney under an EPA.  If the nomination lapses will they renew it or will they let it lapse hoping the super fund pays the death benefit to them as spouse.  The other thing they can do of course is simply revoke it and make a new one in their favour. 

What will they do? 

Do you want to control what they do?

EPAS and Siblings at War

The same problem can arise where your spouse has died and you have made an EPA in favour of one child and not another (who may for example been under 18 when you made it, lack capacity or business acumen or simply live in another country) but you have made a BDBN leaving your death benefits equally between your children.  

Your attorney can decide to not renew or revoke and replace your BDBN (to the detriment of your child who is not your attorney) if your EPA specifically does not preclude them from doing so.

The Narumon Decision

A recent Queensland Supreme Court case (Re Narumon Pty Ltd [2018] QSC 185) has confirmed that your Attorney may (if permitted under the Fund rules) confirm or revoke or vary an existing Binding Death Benefit Nomination or make a new Nomination (even if there is no specific provision in your EPA permitting this to occur).  

Many people make specific provision in their EPA to allowing their Attorneys to make decisions about superannuation matters.

For those who do not want their attorney to be able to this (there are often many good reasons) the effect of the Narumon decision is that now you should, within the terms of your EPA, specifically restrict your attorney from being able to do so.

It is highly recommended that you review your EPA particularly if:-

• your attorney is also the Executor nominated in your will;
• you have included a conflicts clause in your EPA document;
• you have made a lapsing or non-lapsing Binding Death Benefit Nomination;
• you have children from a previous marriage;
• you have children that don’t get along (or might not get along in the future).

Your will, BDBN, Pension Documents, Trustee Constitution and SMSF Trust Deed should also be reviewed with your EPA as part of the process of getting it right.

The detail is bedevilling.