LEGAL LESSON: What happens if your partner is your Enduring Power of Attorney and you divorce?
LEGAL LESSON: What happens if your partner is your Enduring Power of Attorney and you divorce? KatarzynaBialasiewicz

Who is the best person to make the big decisions for you?

IF YOU'RE married or in a de facto relationship and you've made an Enduring Power of Attorney, you've most likely appointed your spouse as your attorney.

The nature of these relationships means that your spouse is often your most trusted confidante, and is the best person to make health and financial decisions for you in the event that you cannot make them for yourself.

But have you thought about what would happen regarding Power of Attorney if you separate from your spouse?

Current legislation

The Powers of Attorney Act 1998 (Qld) provides that any power granted to a spouse is revoked in the event of a divorce.

Divorce is a long process, taking at least 12 months from the initial separation.

For de facto partners, there is no provision in the Act automatically revoking power granted to former partners under an existing Enduring Power of Attorney.

This means that, until your divorce is finalised, your former partner is still your attorney.

In that situation, your spouse may no longer have your trust, and may not be the best person to make health and financial decisions for you in the event that you cannot make them for yourself.

What to do

The easiest solution for you, and the one that provides you with the most peace of mind, is to revoke your previous Enduring Power of Attorney, and draft a new one appointing individuals who you trust to act on your behalf and in your best interests.

While this may seem like one more thing to do in the difficult process of separating from your spouse, it is an important step in securing your future and ensuring the right person will be making decisions for you.

Nathan Rutherford, Solicitor at Rees R & Sydney Jones



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