The Complexities of Changing an Enduring Power of Attorney Once Capacity is Lost: A Cautionary Tale

An Enduring Power of Attorney (EPOA) is one of the most important documents an individual can have to protect their interests as they age or face unforeseen health issues. In Queensland, an EPOA allows a person (the principal) to appoint attorneys to make decisions on their behalf, if they lose decision-making capacity. However, what happens if the appointed attorneys are no longer able to fulfill their roles, and the principal has already lost capacity?

This situation can be complicated, and unfortunately, it often requires the intervention of the Queensland Civil and Administrative Tribunal (QCAT). A recent case at our firm highlights the challenges of navigating this process and underscores the importance of keeping EPOAs up to date.

A Real Case: When Circumstances Change

An elderly gentleman, had appointed one of his children and his grandchild as his attorneys under his EPOA many years ago. At the time, both children lived nearby and were in close contact with their father. Unfortunately, as time passed, their circumstances changed—both attorney’s moved away. In the absence of the child that moved away, one of his other  children moved closer to him and became heavily involved in his caretaking. 

The gentleman did not update his EPOA, despite these significant changes, and sadly, he later lost the capacity to make decisions for himself. When his health deteriorated, it became clear that his attorneys were no longer in a position to act as his attorneys due to the physical distance and their inability to manage his day-to-day affairs effectively. Since the gentleman could no longer revoke or modify his EPOA due to his loss of capacity, the only option was to apply to QCAT for orders to appoint new attorneys.

The QCAT Process

The process of changing an attorney once the principal has lost capacity is not straightforward. QCAT must first determine whether the current attorneys can still act in the principal’s best interests. This requires evidence, submissions, and, often, testimony from involved parties. In our situation, QCAT assessed whether the geographic distance of the attorney impeded their ability to make timely and effective decisions for the principals care.

The application process itself was complex and time-consuming. It involved gathering evidence of the attorney’s relocation, their inability to manage their father’s affairs remotely, and proving that appointing new attorneys was in the best interests of the principal. Our firm worked diligently to prepare the necessary documents and represent the client’s best interests in the tribunal.

Ultimately, QCAT will decide in favour of appointing new attorneys who are better positioned to manage our client’s affairs. While this will be a positive outcome, it required significant time, legal work, and court appearances, which could have been avoided had the EPOA been regularly reviewed and updated.

The Role of QCAT: More Than Just Appointing a New Attorney

When an application is made to QCAT to change an attorney for someone who has lost capacity, it is not always a simple matter of replacing the appointed attorney with someone of the applicant’s choosing. QCAT has broad discretion to make decisions in the best interests of the principal, and in some cases, it may appoint the Public Trustee of Queensland or order the appointment of a Guardian and Administrator instead of replacing the attorney.

Appointment of the Public Trustee

If QCAT finds that no suitable person is available or willing to take on the role of managing the principal’s financial affairs, it may appoint the Public Trustee as the attorney for financial matters. The Public Trustee is a government body responsible for acting in the best interests of the principal, ensuring that their financial matters are handled professionally and impartially. While this ensures proper management of finances, it may not reflect the personal preferences of the principal, which is why proactive planning and reviewing your EPOA is crucial.

In this case, we expect the application will be successful in the appointment of new attorneys; however, there is a risk that QCAT could have appointed the Public Trustee had the tribunal not viewed our replacement candidates as suitable. This possibility highlights the importance of nominating reliable and available attorneys while you still have capacity, and reviewing the EPOA regularly.

Appointment of a Guardian and Administrator

In more complex cases, QCAT may go beyond simply replacing an attorney. If the principal’s situation involves significant personal, health, or lifestyle decisions that need ongoing management, QCAT can make an order to appoint a Guardian (for personal and health matters) and an Administrator (for financial matters) instead of an attorney. These roles are typically assigned when there are serious concerns about the existing attorneys’ ability to act in the principal’s best interests, or if there is no one suitable to take on these responsibilities.

The Guardian and Administrator are legally obligated to act in the best interests of the person for whom they are appointed. While this provides legal protection for vulnerable adults, it means that the management of the principal’s affairs is placed in the hands of professionals who may not have the same personal connection or understanding of the principal’s wishes as a family member or close friend might have.

The Importance of Keeping Your EPOA Up to Date

This case serves as a reminder of the importance of regularly reviewing and updating your EPOA to reflect current circumstances even if they are not directly your own changes is incredibly important. Life changes for both yourself as well as your attorney’s such as moving, a relationship breakdown, or changes in the health or capacity of your appointed attorneys can significantly impact the effectiveness of your EPOA.

We recommend reviewing your EPOA every two years or after any major life event to ensure that your appointed attorneys are still the best people to act on your behalf. Making proactive updates to your EPOA can prevent future complications and help avoid the costly and time-consuming process of going through QCAT to change attorneys.

If you or someone you know may need assistance with an EPOA or the QCAT process, Aylward Game Solicitors is here to help guide you through these important decisions and legal proceedings.

FAQs about Enduring Powers of Attorney (EPOA) in Queensland

Q1: What is an Enduring Power of Attorney (EPOA)?

A: An Enduring Power of Attorney is a legal document that allows you (the principal) to appoint one or more people (attorneys) to make financial, personal, and health decisions on your behalf. Unlike a general power of attorney, an EPOA continues to be effective if you lose the capacity to make decisions for yourself.

Q2: When does an EPOA come into effect?

A: An EPOA for financial matters can come into effect either immediately or at a specific time/event, such as when you lose capacity. For personal and health matters, it only comes into effect when you are no longer able to make decisions for yourself.

Q3: Can I have more than one attorney?

A: Yes, you can appoint more than one attorney. You can specify how they are to act—either jointly (together), severally (individually), or a combination of both. It is important to appoint people you trust, as they will have significant responsibility over your affairs.

Q4: How do I know if I’ve lost capacity?

A: Capacity is typically determined by a qualified medical professional who will assess your ability to understand and make decisions. If you can no longer understand, retain, or communicate decisions about your financial, personal, or health matters, you may be deemed to have lost capacity.

Q5: Can I change or revoke my EPOA?

A: Yes, you can change or revoke your EPOA at any time while you still have capacity. However, once you lose capacity, you cannot make any changes or revoke the document unless through a tribunal like QCAT.

Q6: What happens if I lose capacity and my attorneys cannot act for me?

A: If you lose capacity and your appointed attorneys can no longer act (e.g., due to relocation, illness, or death), someone must apply to QCAT to have new attorneys appointed. This process can be time-consuming and complex, which is why it’s crucial to keep your EPOA up to date.

Q7: What decisions can my attorney make under an EPOA?

A: Your attorney can make decisions regarding:

• Financial matters: managing bank accounts, paying bills, buying/selling property.
• Personal matters: deciding where you live, daily care, and support.
• Health matters: making medical decisions, choosing treatments, or consenting to surgeries.

Q8: What should I consider when choosing an attorney?

A: Choose someone you trust, who understands your values and preferences, and who is willing and able to act in your best interests. It is also wise to consider their location, availability, and ability to manage your affairs.

Q9: How often should I review my EPOA?

A: It’s recommended to review your EPOA every few years or when there’s a significant change in your life, such as:

• Your attorney’s circumstances change (e.g., they move away or become incapacitated).
• You undergo significant life changes (e.g., marriage, divorce, relocation).
• Your financial or health situation changes.

Q10: What can I do if there’s a dispute about my EPOA?

A: If disputes arise between attorneys or family members, or if you believe your attorney is not acting in your best interest, an application can be made to QCAT to resolve the issue. QCAT can review the EPOA, make orders, or appoint new attorneys if necessary.

Q11: What if I don’t have an EPOA and I lose capacity?

A: If you lose capacity without an EPOA, your loved ones would need to apply to QCAT to have a guardian and/or administrator appointed to manage your personal, health, and financial matters. This process can be time-consuming and stressful for your family, and the decision may not align with your preferences.

Q12: What is QCAT’s role in EPOAs?

A: QCAT (Queensland Civil and Administrative Tribunal) can review or change an EPOA if there is a concern about an attorney’s actions, or if an application is made to change attorneys once the principal has lost capacity. QCAT also handles disputes and the appointment of new attorneys if necessary.