Going through a divorce is a difficult time. There’s a lot to worry about like organising financial agreements and parenting arrangements. The last thing you are concerned about is updating the terms of your will, or your enduring power of attorney. However, this is a critical issue during a divorce proceeding, and shouldn’t be ignored.
What is an enduring power of attorney?
Enduring power of attorney is an important role. It can give a nominated person the ability to make decisions about your health and lifestyle, as well as managing your financial and property affairs. You may give your appointed attorney responsibility for either of those areas, or both.
With respect to health and lifestyle matters, enduring powers of attorney only begin if you lose the capacity to make decisions for yourself. However, enduring power of attorney over financial matters may start at any time specified by you. It can start:
Once you lose the capacity to make your own decisions;
At a nominated time;
In specific circumstances, such as during an overseas trip.
This differs from a general power of attorney, which is only in effect while you have capacity. This means someone with enduring power of attorney has greater discretion over your private affairs.
Who is your enduring power of attorney?
Enduring power of attorney can be given to anyone you trust. It’s common for couples to have enduring power of attorney for each other. This is not necessarily a problem. However, problems can arise in the event of a relationship breakdown. In this event, you may feel more comfortable removing their power of attorney, and giving it to someone else.
You can invest more than one person with power of attorney, and it can be allocated in a number of ways. You might nominate one person to preside over financial affairs, and another person for health and lifestyle affairs. You can also set up a succession of nominees, so if one cannot exercise their power, the responsibility automatically passes to the next person in line.
Reviewing your enduring power of attorney
In Queensland, if your spouse is invested with your enduring power of attorney, it will automatically be revoked upon divorcing. This contrasts with every other state, where their power of attorney remains in effect after divorce.
However, couples must be separated for a minimum of 12 months prior to a divorce. Even in Queensland, that power of attorney remains in effect during that 12 month separation period. So, if the circumstances of your relationship change, power of attorney should be reconsidered immediately.
You can remove someone’s power of attorney by filling out the ‘Revocation of an Enduring Power of Attorney’ form. This form only has force if you have the capacity to make decisions on your own behalf. If you have lost this capacity, you cannot make alterations to your power of attorney.
Contact Life Law Solutions today to discuss any questions you have about your enduring power of attorney. You can book a free 15 min discovery call with a lawyer below: