One of the main benefits of having an Enduring Power of Attorney is the peace of mind that comes with knowing your affairs will be handled by the person you think is best suited for that role.
We are seeing an increasing number of clients, whose original Enduring Powers of Attorney have been misplaced, and the clients have only found out when those documents need to be relied on.
I recently saw a client whose husband had developed dementia and needed full time residential care. Before our client's husband was placed in care, he was trying to sell a large rural property that he had inherited from his parents.
They had been living on this property before moving to town to allow greater access to medical treatment. Once her husband was unable to make decisions for himself, our client's intention was to sell the property as her husband's attorney under an Enduring Power of Attorney, and use to proceeds of the sale to pay his residential accommodation and care.
When it came time to sign the contract of sale, our client was unable to find the original Enduring Power of Attorney that gave her the authority to sign the contract on her husband's behalf. Our client advised that she remembered putting the document in a safe place with some other paperwork, but was unable to find it again.
The only available solution to our client was to make an application to the Queensland Civil and Administrative Tribunal to be appointed the administrator of her husband's financial affairs. While this is a free process designed to be undertaken without a lawyer, it took a lot of time and effort for our client to make her application alone.
Some six months later, our client was finally appointed as her husband's administrator and had the authority to sell the property on her husband's behalf.
Our client did not need to retain her husband's original Enduring Power of Attorney. The Powers of Attorney Act allows an attorney to make decisions as long as they can produce a certified copy of the original document.
The only exception to this rule is that when selling land, the original Enduring Power of Attorney must be lodged for registration with the Department of Natural Resources, Mining and Energy.
Many law firms have a safe custody facility that catalogues and stores important original documents. These safe custody facilities allow clients to collect the original to have a certified copy prepared by a lawyer, Justice of the Peace or Commissioner for Declarations, and then return the original to the safe custody facility for further storage. This ensures that the original is never accidentally lost or destroyed and is always available to clients in their time of need.