There are often many questions people have about Enduring Powers of Attorney including what they are, why they are needed and which documents are required. Deciding who will be your Enduring Power of Attorney is an important decision, so we have compiled a range of common questions we are asked along with some important considerations to keep in mind as you go through this process.
1. What is an Enduring Power of Attorney in Australia?
An Enduring Power of Attorney in Australia is a legal document in which a person (“Principal”) appoints another person or persons (“Attorney/s”) to make decisions for them. “Enduring” means the power continues even after the Principal loses capacity to make their own decisions.
2. Why would I need to make an Enduring Power of Attorney?
Often, an Enduring Power of Attorney is made as a planning tool to ensure that if you lose the ability to make your own decisions, you have an appointed person (or people) that you trust implicitly to make those decisions for you, in the way that you would like them made.
It is also important to have an Enduring Power of Attorney because decision-making capacity can be lost at any time in a person’s life. It can come into effect as a result of an accident, illness, or cognitive decline. We regularly help people document specifically under which circumstances they would want their Enduring Power of Attorney to come into effect.
3. What sorts of decisions can my Attorney make for me?
You can decide which of the following types of decisions your Attorney will make for you, and how you would like them made. You do not need to give your Attorney authority in all of the following areas, but they can include:
a) Property and finances
These decisions relate to management of your financial assets, such as property, bank accounts, shares, and superannuation.
b) Personal care
These decisions relate to how you are looked after, such as where you live, who you live with, your daily dress and diet, and other day-to-day care matters.
c) Health care
These decisions relate to what medications and medical treatments you receive, and can cover issues such as whether your organs are to be donated or whether life-support or other medical treatment is withdrawn.
d) Medical research matters
These decisions relate to whether you participate in medical research. The medical research must be approved by an ethics committee, and unless the research is low-risk, the research must relate to your medical condition, must benefit you or others with the condition, such benefit must not outweigh the risks, and the research must not unduly impact your privacy.
3. Who should I appoint as my Attorney?
Your Attorney should be a person (or persons) over the age of 18 years whom you trust implicitly. For property and financial decisions, that person cannot be an undischarged bankrupt.
Alternatively, if you do not have such a person in your life, you can appoint the Public Trustee or a Trustee Company.
You can appoint more than one Attorney, and you can appoint different Attorneys for different types of decisions. You can appoint Attorneys to act together, or separately.
4. Can my Attorney keep making decisions for me after I have died?
No. The Attorney’s authority only continues during your lifetime.
5. Does a Power of Attorney expire?
There is no time limit. An Enduring Power of Attorney only ends if you die or if you still have capacity and choose to revoke the document/s or make a new one. Once you have lost capacity, you are unable to revoke your Power of Attorney or change the document/s.
Related: When the capacity of a will maker is in doubt
6. What are my Attorney’s obligations?
Your financial Attorney has a fiduciary obligation to you. This means they must abide by the highest standard of care in acting in your best interests, always.
As discussed above, there are a range of decisions you may require of your Attorney.
Your financial Attorney must:
a) Keep clear financial records of all transactions;
b) Keep your money and finances separately from their own;
c) Avoid transactions which would result in a conflict between their interests and yours (unless expressly authorised by you);
d) Not use your financial resources to benefit themselves (unless expressly authorised by you).
Your wishes in relation to a health care matter or a medical research matter, and any information provided by your healthcare provider, must be taken into account when an Attorney decides what is appropriate in the exercise of health care or medical research decisions.
Other considerations to which your Attorney must have regard include:
- Your wishes regarding access to family members and relatives, and their involvement in your decisions
- Your human worth and dignity as an individual;
- Your right to be valued as a member of society;
- Your need and wish to have a reasonable quality of life;
- Your right to take part in decisions affecting your life to the greatest extent possible;
- The importance of maintaining your existing supportive relationships;
- The importance of maintaining your cultural and linguistic environment, and set of values (including any religious beliefs); and
- Your confidentiality.
7. What documents are required for an Enduring Power of Attorney in NSW or the ACT?
There is a difference in the documents required for an Enduring Power of Attorney in NSW and in the ACT.
In NSW, there are two separate, but complementary documents which enable you to appoint a person or persons to make decisions for you. A NSW ‘Enduring Power of Attorney’ enables you to appoint an attorney to make decisions in relation to your property and finances.
The second document is a NSW ‘Appointment of Enduring Guardian’ which enables you to appoint a guardian to make lifestyle, health and medical decisions.
However, in the ACT, there is only one document and it’s called the Enduring Power of Attorney and it covers all of the decisions that need to be made including financial, personal care, medical care and end of life related decisions.
8. I have an Advanced Care Directive. Do I need an Enduring Power of Attorney?
Yes. An Enduring Power of Attorney provides legal authority to the person/s of your choosing to make important decisions on your behalf. An Advanced Care Directive doesn’t provide any legal authority to ensure that your financial matters are carefully and properly managed for you if you can’t manage them yourself. However, an Advanced Care Directive can, if you wish, also be prepared to guide your Attorney in exercising their decisions about your health care, medical treatment, and end-of-life decisions.
Related: How to avoid disputes about your will
When the capacity of a will maker is in doubt
If you have questions about your Enduring Power of Attorney, reach out to our highly experienced team who specialise in helping people in these areas every day. To discuss your circumstances confidentially, phone our team on (02) 62127600 or fill in this form and our team will be in touch.
