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In short, this will depend on whether you plan ahead. You can decide in advance who can make decisions for you by preparing a legal document known as an Enduring Power of Attorney (“EPA”). An EPA authorises another person/s to act on your behalf in managing your affairs should you lose the capacity to do so. Losing capacity does not just happen to seniors, it can happen at any time and this loss may be temporary or permanent such as an acquired brain injury. Your appointed attorney can make important decisions on your behalf about personal and health matters, as well as your financial matters, should you lose capacity.
What Happens When You have Not Made an Enduring Power of Attorney?
If a person loses capacity and they have not made an Enduring Power of Attorney then the only option is for a family member, close relative, close friend or even a trusted professional (such as a lawyer or financial advisor) to apply to the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT has exclusive jurisdiction for the appointment of guardians (that is to make health and personal decisions) and administrators (that is to make financial decisions) for adults with impaired capacity. Before QCAT can exercise its discretion, it needs to be satisfied that:
- The adult has impaired decision making capacity;
- There is a need for a decision;
- A decision maker is needed to ensure that the adult’s needs are met, and their interests are protected.
The process through QCAT can take a number of months.
We can assist you to understand and prepare a carefully drafted Enduring Power of Attorney. We can also advise you in all matters in QCAT including seeking the appointment of administrators and/or guardians; removal for inappropriate action and preparing an Application to QCAT.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.
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