Katelyn Gillert, an associate at Cooper Grace Ward Lawyers, has said that the documentation of appointment should contain the date an EPOA can start acting.
“For financial matters, you can either have your attorneys acting immediately, which means as soon as you sign the document and as soon as they accept their appointment, they can go to the bank and they can start making financial decisions for the principal,” Gillert said at the recent CGW Annual Adviser Conference.
“You can also put a specific date of when you’d like that attorney to start acting. The very other end is that they have to wait until the member has lost capacity, till the principal is no longer able to make decisions for themselves.”
Gillert said this timing is different for health and personal matters. For example, in Queensland, an EPOA can only make decisions for personal and health matters once the principal has lost capacity to make those decisions for themselves.
“At the end of the day, the individual circumstances of our principals, of our clients, are going to determine what is the best outcome for them in that respect, and what the best way to get to their intended outcome of how and when their attorneys are going to make decisions,” she said.
She gave an example of a married couple, Kermit and Miss Piggy, who have two sons, Fozzy and Scooter, the latter of whom is estranged from his parents.
Kermit runs a family business with Fozzy and has an enduring power of attorney in place, which states that Miss Piggy is appointed in the first instance for personal matters and for financial matters. Fozzy and Scooter are then appointed jointly for personal and health matters and for financial matters if Miss Piggy can’t act.
“Kermit and Miss Piggy have now both lost capacity. So, what does that mean? It means Fozzy and Scooter are now appointed jointly as attorneys for Kermit to make decisions. Now is that what Kermit intended, potentially, if he’d made it before the falling out with his son Scooter? He might have wanted both of his sons to act together jointly, but now that he’s had a falling out with Scooter, he’s estranged,” she said.
“I’d argue that’s not what his intentions were just before he lost capacity, and then, realistically, are Fozzy and Scooter able to act together? What if he can’t contact Scooter? They’re not going to be able to make any decisions jointly, because if Fozzy goes to the bank, the bank’s going to want to see both Fozzy and Scooter, they’re both going to have to sign documents.”
She continues that this could potentially lead to a very expensive and drawn-out application to the Supreme Court to try and sort it out so that Fozzy can make decisions without Scooter.
“The intentions will be different when family circumstances change. We all deal with clients who have, at times, complicated situations with businesses, families and structures. But what else can we do with them? How far can we go in some situations?” she said.
“It is appropriate to look at where we can put limits on an attorney’s powers. The principal might decide to put some terms and conditions around how they want their attorneys to be acting in relation to potentially certain structures and certain assets, and that could look like a financial limit on decisions.”
Gillert added that this could be stating that appointed EPOAs act separately for transactions up to, say, $10,000, but over that, they must act jointly.
“We can also deal with different assets differently. We can have decisions about investment preferences in our documents, and we can quarantine assets and structures,” she said.
“We could have a client who has business structures they run like Kermit does with his son. He’d like his son to still be able to make decisions about that business, and anything else that’s outside of that, he’s happy for his wife to make decisions about. These documents, when required, have a lot of drafting put into them, and have a lot of thought about how practically these attorneys are making decisions once they’ve lost capacity.”
