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Loss of capacity – What happens if there is no Attorney?

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Loss of capacity – What happens if there is no Attorney?

Who deals with legal affairs?  Does the government take control?  What can I do?

 Ideally, an Enduring Power of Attorney is like an insurance policy – you appoint your attorney to manage your affairs if you lose capacity – but with the hope that you do not ever lose capacity.  Naturally, you can only authorise and appoint an attorney when you have legal capacity to do so – that is, the ability to understand the nature and effect of your decisions, to freely make those decisions (i.e. without influence) and communicate those decisions.

If a person has lost capacity, then unfortunately they aren’t able to appoint an attorney to look after their affairs (unless they later regain capacity).  It is possible for a person to be appointed to look after an incapacitated person’s affairs – effectively taking on the role as attorney – however it’s a much more lengthy and uncertain process.  This can leave financial and legal affairs in limbo, which is why it’s a good idea to have an Enduring Power of Attorney.

The process to be appointed to look after an incapacitated person’s affairs involves an application to the Queensland Civil and Administrative Tribunal (QCAT).  In order for QCAT to appoint a guardian/administrator, they need be satisfied:

  • That the person does not have decision-making capacity;
  • That the incapacitated person is 18yrs or older;
  • That there is a need for another person to be appointed as a decision-maker for the incapacitated person to look after their interest; and
  • That the appointed decision-maker is a suitable and appropriate person to make decisions for the incapacitated person.

Generally, a close relative would be appointed as a decision-maker for the incapacitated person, but each appointment is heavily dependent upon the facts of the case.

If you know someone who doesn’t have an Enduring Power of Attorney and lacks decision-making capacity, and there is a need for someone to be appointed to manage their affairs, please contact us and we can assist you through the application and appointment process.

Article written by Thomas Ashton, Senior Associate

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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