What is a Power of Attorney and an Enduring Power of Attorney?
A Power of Attorney is a legal document by which you can appoint another person or multiple people (referred to as ‘attorney/s’) to make decisions for you or act on your behalf. In particular, an Enduring Power of Attorney (EPOA) authorises an attorney to make decisions for you in the event that you lose the ability to make decisions for yourself.
Why make an Enduring Power of Attorney?
For many of us there will be a time during our life, due to accident, poor health or advanced age, that we will be unable to make decisions for ourselves.
There is no automatic regime for another person to make decisions for you if you become incapacitated. Making an Enduring Power of Attorney (EPOA) gives you certainty about who will make decisions for you while you are incapacitated and on the terms and conditions you set. Being prepared and having an Enduring Power of Attorney will also alleviate a burden for your family members or carers in obtaining legal authority should you require assistance with managing your affairs in the future.
What decisions can an Attorney make?
This varies between States and Territories in Australia. Here we cover the decisions an attorney can make in both the ACT and in New South Wales.
If you live in the ACT, you can appoint an attorney to act for you in relation to some or all of the following matters:
Property and Finances
Example: managing your finances to pay for your living expenses, medical bills and debts; selling and buying assets on your behalf; and ensuring your tax and other financial obligations are looked after.
Personal Care Matters
Example: deciding where and with whom you live; whether you work; and your day-to-day needs such as diet and dress.
Health Care Matters
Example: dealing with medical practitioners on your behalf; deciding what treatment you receive; and deciding when to withdraw medical treatment.
Medical Research Matters
Example: deciding whether you participate in medical research such as an observational study or receiving treatment under a clinical trial. The proposed research must be ethically approved; an independent doctor must have certified that you are unlikely to regain decision-making capacity prior to participating in that research; and your attorney must follow the decision-making principles set out in the legislation.
New South Wales
If you live in NSW, you can appoint an attorney and a guardian to act for you.
There are two documents which govern decision-making in the event you lose capacity. The first document is the EPOA document, which deals only with financial and property decisions.
The second document is the appointment of an Enduring Guardian. This document allows decisions to be made in relation to your personal care matters and health care matters.
Who should I appoint as my Attorney / Guardian?
It is crucial that you appoint someone that you trust. While an attorney does have specific obligations to act in your interests, an attorney will have significant responsibility, so it is important that you appoint someone who is trustworthy, reliable and sensitive to your wishes. You can appoint multiple attorneys.
You can specify whether those attorneys must act together or whether they may act individually. Alternatively, you could appoint one person as your primary attorney and another person as a back-up attorney in case the primary attorney is unable to act.
Another option is to appoint one attorney for financial matters and a separate attorney for personal care, health care and medical research matters.
How do I appoint an Attorney / Guardian?
To be valid, the appointment must use the prescribed legal form/s and be signed and witnessed according to legislative requirements.
As each State and Territory has its own rules and prescribed forms relating to the appointment of attorneys and guardians, it is important that you use the correct document/s for either the ACT or NSW.
Who is able to appoint an Attorney or Guardian?
To appoint an attorney or guardian, you need to be over 18 and have the capacity to understand the nature and effect of making the appointment.
If a person lacks the capacity to appoint an attorney or guardian, it may be appropriate for a family member or friend to apply for Guardianship and/or Management Orders. These can be applied for through the ACT Civil and Administrative Tribunal (ACAT) or the NSW Civil and Administrative Tribunal (NCAT). There are similar bodies in each state and territory of Australia.
What are an Attorney’s / Guardian’s obligations?
An attorney must follow strict legal requirements when acting under an EPOA. The legal obligations are detailed in Schedule 2 of the ACT EPOA document. Some of the obligations include:
- An attorney must not use your assets for their benefit, unless you specifically authorise it in your EPOA document.
- An attorney must keep clear financial records of all transactions.
- An attorney must keep your money separate from their own.
- An attorney must make decisions taking into account the principles set out in the EPOA document.
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Our Wills & Estates Team at DDCS Lawyers can guide you through the process of appointing an attorney and/or guardian in the ACT and NSW. We will clearly explain your options, offer practical advice and ensure your documents comply with all relevant legal requirements.
We are also able to advise attorneys on their responsibilities and assist with Guardianship and Management applications to ACAT and NCAT. For further information or to make an appointment with our Wills & Estates Team, please contact us on (02) 6212 7600 or by email at firstname.lastname@example.org.