What happens if you do not have an Enduring Power of Attorney?

Often people will say: “I’m too young to have an Enduring Power of Attorney”, “I’m not unwell so I don’t need one”, or “I won’t be going into care, my family will look after me”.   Unfortunately, no one has a crystal ball to know what lays ahead health-wise, and often a situation can arise unexpectedly and may be the result of a medical event, illness or accident, which can lead to you becoming mentally incapacitated.   

What happens if I don’t have an Enduring Power of Attorney?

With no Enduring Powers of Attorney in place, no one has an automatic right to handle your affairs.   Even if some of your assets are jointly owned, your spouse or partner may be able to deal with some of these, however they will not be able to sign on your behalf if you are mentally incapacitated.

If you become mentally incapacitated and there are no Enduring Powers of Attorney in place then an application will need to be made to the Court, the first step to this process is to obtain a medical certificate from the doctor involved.   

What court orders will be sought?

The two most common orders sought are a Welfare Guardian, who looks after your personal care and welfare and a Property Manager who can take care of your property, including real estate, bank accounts and any other investments etc. 

Who will be appointed by the Court?

Often, someone in the family will put their hand up to be appointed, in some cases there may be more than one family member who feels it should be them who should be appointed.  In other cases, there may not be many or any family members and only a few close friends and the decision on who should apply can become a bit complex and can cause delay. 

What happens after the application is made to the Court?

Once an application has been made to the Court, the Court will appoint an independent lawyer who will usually meet with you and speak on your behalf.  The Judge will be reliant on the information provided to the Court and will not know who among your family and friends is most able to be trusted and, in some cases, may not be able to ascertain from you if you wanted a certain person to act for you. 

The Court however, will take into account the advice of the appointed lawyer and any views put forward by family members and will make a decision based on what the Court believes is in your best interests.

How can this be avoided?

To avoid unnecessary delays in Court, we always suggest that Enduring Powers of Attorney be put in place while you still have capacity and it is simply good estate planning to do so.  It will alleviate unnecessary stress and expense on all concerned should something unexpected happen down the track.