Common Issues with Enduring Powers of Attorney
An Enduring Power of Attorney (EPOA) is a critical legal document that gives someone you trust the authority to make financial and personal decisions on your behalf. While it’s an essential part of a well-rounded estate plan, there are several common issues—both legal and practical—that principals and attorneys should consider before and during its use.
Let’s explore these common issues and how to address them to ensure your EPOA works the way you intend it to.
When Should an Enduring Power of Attorney Take Effect?
One of the most important decisions when preparing an Enduring Power of Attorney is deciding when the authority to act should begin—particularly for financial matters. In Queensland, you can choose whether the power begins:
Immediately upon signing, or
Only if and when you are assessed as having lost capacity
Many legal practitioners take the view that an immediate financial power is appropriate, particularly for clients facing early cognitive decline or who already rely on others for help with financial tasks. Immediate powers can allow attorneys to step in before a full loss of capacity—such as in cases of early-onset dementia, impulsive spending, or financial vulnerability.
However, at Vicca Law, we often recommend that the power only begins once the principal is assessed as having lost capacity by a qualified medical practitioner. This protects your right to make your own decisions for as long as possible.
That said, there are situations where immediate authority is appropriate—such as when a client is elderly and already relies on family members for financial help, or if someone has a terminal illness and wants to remove the administrative burden from their shoulders.
The key is to align the timing of the power with your specific needs and preferences.
Choosing the Right Attorneys
Appointing attorneys is not always straightforward—especially if you don’t have a spouse or adult children. Your attorney should be someone trustworthy, capable, and ideally younger than you to ensure they’re able to act when needed.
While most clients appoint their spouse and adult children, those without close family often face difficult choices. There are professionals and trustee companies that offer attorney services, but they may charge fees and may not be the right fit for everyone.
We’ve also seen situations where attorneys—particularly elderly friends—struggle with the demands of the role. Online banking, bill payments, and keeping track of financial records can become overwhelming, especially if the attorney is ageing themselves. This highlights the importance of appointing attorneys who are not only willing but capable of managing your affairs.
Considering Conflict Provisions
Another common issue in EPOAs is the potential for conflicts of interest—particularly when attorneys are family members living in the principal’s home or benefiting from financial support.
In these situations, it’s essential to include tailored provisions that allow the attorney to continue receiving support without breaching their duties. For example, clauses can be added that permit an attorney to use the principal’s funds for household expenses or ongoing maintenance.
At Vicca Law, we routinely include special clauses that address these potential conflicts, giving attorneys the legal clarity they need to act confidently and lawfully.
Appointing Alternate Attorneys and the Risk of Inaction
Every EPOA should include alternate attorneys. If your first-choice attorney is unwilling or unable to act, you don’t want to leave your affairs unmanaged.
We’ve seen situations where an attorney becomes overwhelmed and wants to step aside—but without an alternate appointed, a QCAT application becomes necessary. If no suitable person is available, the Public Trustee of Queensland may be appointed, which often results in additional costs and reduced flexibility.
To avoid this, we recommend appointing at least one alternate attorney and reviewing your EPOA regularly to ensure it still reflects your circumstances.
Common Issues Faced by Attorneys
Attorneys also face a number of challenges once they begin acting. One of the most common is conflict between what they believe is in the principal’s best interests and what the principal wants.
For example, adult children acting as attorneys may feel that it’s safer for their parent to move into a care facility, while the parent—though cognitively impaired—insists on remaining at home. Balancing respect for the principal’s wishes with practical safety concerns is a deeply personal and often difficult task.
Good attorneys listen, reflect, and seek advice when unsure. If you’re questioning whether you’re doing the right thing, you probably are—because it shows you're acting thoughtfully and in good faith.
Why Legal Advice Matters
A well-drafted Enduring Power of Attorney isn’t just a form—it’s a legal tool that needs to fit your life and protect your interests.
While the standard government form is available online, generic documents rarely account for your unique financial position, family dynamics, and personal values. A solicitor can help ensure the document aligns with your needs, includes appropriate conflict provisions, and appoints the right people in the right roles.
If you're a principal wanting to review your Enduring Power of Attorney, or an attorney seeking guidance on your responsibilities, we’re here to help.
Book a free 15-minute consultation and take the next step toward protecting your future.