Often clients take a lot of time and effort to consider what they want to have occur in the event that they pass away. Their estate plans may be elaborate and designed to protect beneficiaries over multiple generations.

However it is becoming more likely in today’s society that before passing away, you will live for a period of time incapacitated. Dementia Australia says that there are 472,000 people living with all forms of dementia in Australia, of whom 90,000 live in Queensland. Dementia Australia define dementia as “a collection of symptoms that are caused by disorders affecting the brain. It is not one specific disease. Dementia affects thinking, behaviour and the ability to perform everyday tasks. Brain function is affected enough to interfere with the person’s normal social or working life.”

The point of this article then is to ask what if you live, but spend a period of time incapacitated?

An Enduring Power of Attorney (EPOA) can be used to go beyond who will make the decisions to consider what decisions should be made.

The latest longform version of the QLD EPOA provides a section which “allows you to provide information about yourself, including what is most important to you in life now and into the future.” “An attorney(s) must take your views, wishes and preferences into consideration when making decisions on your behalf.”

Let’s consider what this might look like.

Clara really thinks about what matters to her and what is important for her quality of life both now and in the future and comes up with the following list:

  • I want to be able to continue to live in my comfortable home in Mundubbera as a majority of the townspeople know me and will interact with me even if I am losing capacity.
  • I regularly play golf and would like to continue to do this for as long as possible for exercise and to be outside in the fresh air.
  • I would like to remain living in my own home for as long as possible. To this end I have made the home elderly accessible and would like to have Home Care provided to me where possible.
  • I regularly provide a substantial Christmas gift to my adult children (my Financial Adviser has a gift register) and I wish this to continue at the same amounts even where my children may be my Attorney.
  • I provide 50% of my grandchildren’s Private School fees and I wish this to continue until the youngest has completed high school.
  • I want my pet dog Allegra to stay in the home with me for as long as possible. If I am unable to exercise Allegra, my neighbours’ children will do this for a small fee.
  • I usually spend Christmas with my adult children and I would like this to continue and am happy to pay for any assistance required to allow this to occur.
  • I meet up with my friends (list attached) once a week for afternoon tea and would like this to continue as my friendship circle is important to me.
  • I have been a long-time supporter of the Salvation Army and would like my regular donations to continue to this organisation.

If there were particular cultural or religious practices important to Clara, they could also be included, as could healthcare preferences.

There is no reason why the above list could not be included at Section 2 Your Views, Wishes and Preferences. You may also wish to provide instructions to your Attorney on your Terms and Instructions.

James considers some of his specific instructions and comes up with the following list:

  • I have always encouraged independence in my children and therefore do not consent to my children living in my home with or without me.
  • I have a specific Estate Planning purpose for my large home and therefore my Attorney is not to sell my home unless they have exhausted all other options to pay for my aged care accommodation and services.
  • I have successfully built wealth by trading shares in my Self Managed Super Fund, however once I have lost capacity I would like my Attorney to consult with my Financial Adviser on selling the shares and rolling over to a retail super fund to simplify my affairs.
  • If this is done, then I would like my Attorney to replace reversionary pensions and binding death benefit nominations in the new fund to match what they previously said.
  • I provide housing for my elderly parents and wish for this arrangement to continue as long as they require it.

All of these wishes could be included at Section 3 Terms and Instructions.

You can now see that if you really gave some thought as to how you would want your life to look if incapacitated that very good instructions can be left for your Attorney to follow. Your Solicitor will be able to further guide you on these matters and provide examples of other instructions that they have seen or assisted in drafting.

This would not only give you peace of mind, but also help your attorney in making the most appropriate decisions for you.

If you would like further information about Estate Planning issues take a look at our video library or get in touch with one of our expert Wealth Advisors in our Ulton Wealth Management team today.



11] https://www.dementia.org.au/statistics

[2] https://www.dementia.org.au/about-dementia/what-is-dementia

[3] https://www.publications.qld.gov.au/ckan-publications-attachments-prod/resources/17942707-4c02-4c98-af31-48b8ebcb957e/form-9-enduring-power-of-attorney-explanatory-guide.pdf



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