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In my previous article about the effect of size on families, I discussed the will making issues that can arise in large families.

This article addresses the issues in making an Enduring Power of Attorney (EPOA) – the document where you appoint people to make decisions for you if you lose your capacity to do so.

As in the previous article, mum, in her early 80’s, has 5 adult children. Typically, before her husband’s death, she had appointed him to be her EPOA. Because he has died, she has no EPOA so she needs to make a new one. The most obvious candidates are her children who she loves dearly – two of them are nurses, one a schoolteacher, one an accountant and one she describes as a ‘disappointment’.

Here’s how our discussion proceeds:

  • Her love for them and her instinct to be inclusive, compels her to think, initially, she should appoint all of them.
    • My usual considered legal response is – Hmmm, think about that – is it just a recipe for disunity and dispute to have all 5 of them having to agree on any decision they have to make for you?
  • Well what if I appointed one of the children who is a nurse to make health care decisions for me and the one who is an accountant to make financial decisions for me
    • Hmmm I repeat – experience has taught me that it is not best to appoint children based on their professional expertise for two reasons, namely, it can lead to a demarcation dispute between them as to who is entitled to make a particular decision and they often simply rely on their so called expertise to make a decision rather than what is in your best interests
  • Well what if I appointed some of them
    • Less of a Hmmm on this occasion because that is getting towards a good solution. But who, how many and how would they make decisions eg individually or collectively

We get to a point where she can start to find a solution that appeals to her sense of inclusiveness but at the same time is practical. For example, she could appoint 2 of them and require those 2 to tell the other 3 of any major decisions they may make. That way they can make decisions efficiently but the others are kept in the loop.

The EPOA document may appear to be a beige bureaucratic form but it can be tailored and massaged to your personal circumstances. Doing it well at the outset is another way of reducing the propensity for family implosion in later life.

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