General Information on Power of Attorney and Enduring Power of Attorney
The following information is general guide only to the two types of powers of attorney, the General Power of Attorney and the Enduring Power of Attorney. Each Australian State varies in its requirements to make a valid power of attorney along with what powers an attorney can and can’t exercise. If you have any doubts or questions you should consult your lawyer before executing a power of attorney.
What is enduring power of attorney?
Power of attorney is the legal power to make decisions on someone else’s behalf. ‘Enduring’ simply means that the power continues even if the person giving it loses the capacity to make decisions.
Why give someone enduring power of attorney?
There are some circumstances in which you may be unable to make decisions about matters that concern you. For example, you may be overseas, or you may be too ill. If you give someone general power of attorney, for instance to sign documents for you in your absence, that power will come to an immediate end if for some reason you lose your capacity to make decisions. This could be very awkward if your attorney is in the process of conducting business affairs for you. Giving someone enduring power means that he/she is able to continue to act for you if you lose capacity to act for yourself.
What types of decisions?
You may give your attorney power to make decisions about:
- personal/health matters;
- financial matters.
Examples of personal/health matters are decisions about where and with whom you live, whether you work or undertake education or training, whether you apply for a licence or permit, and day-to-day issues like diet and dress, and whether to consent, refuse to consent or
withdraw consent to particular types of health care for you (such as an operation).
An example of a financial matter is deciding how your income should be invested.
Note: You cannot give your attorney power to make decisions about:
- special personal matters, such as a decision about your will, appointing someone as your attorney, voting at elections, or consenting to adoption or marriage;
- special health matters, such as donation of body tissue, sterilisation, pregnancy termination, research or experimental health care, or certain psychiatric or other health care as specified in the regulations. Your attorney can consent to the withdrawing or withholding of life-sustaining medical treatment if, for instance, you become terminally ill or go into a state of permanent or persistent unconsciousness. You can also give instructions about this type of decision if you make an Advance Health Directive. These instructions will override any decision of your attorney.
Can I limit my attorney’s powers?
Yes, you can specify decisions that you do not want your attorney to make. You can also include particular instructions about what you would like your attorney to do. Your attorney must always act in accordance with your instructions. There are also limits set by legislation. For example, the Trusts Act names the types of investment that a trustee (in this case your attorney) is authorised to make. If you lose the capacity to make financial decisions, the only investments your attorney can make on your behalf are those that are named in the Act, unless the consent of the Court is obtained.
Can I appoint more than one attorney?
Yes. Several options are provided for in the Act. For example, you may appoint two or more attorneys to act jointly (together), or as a majority (simple, two-thirds, etc.) or severally (any one of your attorneys can sign), or successively (power is given to a particular attorney when the power given to another attorney ends, or when the other attorney is not available to make decisions).
If you choose two or more attorneys to make decisions jointly, they have equal authority and can act only with the agreement of them all. If one attorney dies, the remaining attorneys exercise the power. It is important that your intentions be expressed clearly. There is space in the forms to appoint up to four attorneys.
Whom should I appoint as my attorney?
You should appoint someone you trust. Many people choose their spouse or an adult child, but you may prefer to appoint another family member or friend with expertise in the area, or the Adult Guardian for personal matters, or the Public Trustee or a trustee company for all matters. (The Adult Guardian is appointed by statute to look after the rights and interests of people with disabilities and, in certain situations, to give health-care consent.)
Your attorney must be over eighteen years of age, must not be your current paid carer or your current health-care provider (such as your nurse or your doctor), and (for financial matters) must not be bankrupt or insolvent.
Note: ‘Paid carer’ does not mean someone receiving a carer’s pension or similar benefit, so
you are free to choose someone who is receiving such a benefit for looking after you.
Should I pay my attorney?
You do not need to pay your attorney for the power to be effective. Normally payment is not made unless a trust company is acting as attorney. Some States legislation allows attorneys to make gifts to themselves while other State legislation forbids gifts to attorneys without the authorization of the principle.
Our forms clarify this position by providing a specific question on whether you authorize gifts or not.
When does the attorney’s power begin?
With personal/health matters, your attorney’s power to make decisions does not begin until (if ever) you are incapable of understanding the nature and foreseeing the effects of a decision, and of communicating that decision.
With financial matters, you may nominate when your attorney’s power is to begin. If you do not name a date or an occasion, it begins immediately. On the other hand, if you lose the capacity to make such decisions before the date or occasion you name, the power begins at
Note: Even if you give your attorney power immediately, you may also continue to make
decisions yourself while you are able to do so.
How much control will my attorney have?
Once the power to make a decision begins, your attorney will have full control over that decision unless you have explicitly limited that power in the document.
Note: It is better not to place too many restrictions on your attorney’s power, as this may
make it difficult for your attorney to make decisions on your behalf when the time is needed. Keep the restrictions simple and direct.
How long does the power continue?
For personal/health matters, it continues so long as you are incapable of understanding the nature and foreseeing the effects of a decision, and of communicating that decision.
For financial matters, it continues until it is revoked.
How can I be sure that my attorney will act in my interests?
While (if ever) you are unable to oversee your attorney’s decisions, the State Civil and Administrative Tribunals and the Supreme Court have the power to protect your interests. Your attorney may be required to produce a summary of receipts and expenditure or more detailed accounts, and these may be audited. An attorney who does not adequately protect your interests can be removed or changed.
Can I change or revoke this power of attorney?
Yes, you may change or revoke it at any time, so long as you are capable of understanding what you are doing. In other words, so long as you have the capacity to make an enduring power of
attorney, you also have the capacity to change or revoke it. If you do change or revoke this power, you must inform your attorney.
Is there anything else that will end this power?
Yes, several other circumstances will bring this enduring power of attorney to an end:
- If you get married. If you marry, the power of attorney is revoked unless your new spouse is already your attorney. (If your new spouse is your attorney, the only power that is revoked is the power of any other attorney you may have.)
- If you get divorced. If you divorce, the power of attorney is revoked to the extent that it was given to your former spouse.
- If you die. If you die, the enduring power of attorney is revoked in its entirety.
- If you make an inconsistent document. This power is revoked to the extent of any inconsistency with any later document you complete, such as an Advance Health Directive or another enduring power of attorney.
- If your attorney withdraws. Your attorney may withdraw by giving you a signed notice. If you have lost capacity your attorney cannot withdraw without getting the Court’s leave to withdraw.
- If your attorney becomes your paid carer or health-care provider. If this happens, your attorney’s power is revoked.
- If your attorney becomes incapable. Your attorney’s power is revoked if he/she becomes incapable of understanding the nature and foreseeing the effects of a decision, and of communicating that decision.
- If your attorney becomes bankrupt or insolvent.
- If your attorney dies.
How do I complete a power of attorney?
DIY Willmaker takes you through a series of simple questions to generate the document. You will be asked to make various selections and depending on the answer some new choices may arise. Other sections will require details such as names and addresses of attorneys and any special limitations you might wish to impose on the attorney.
Who is involved in completing this document?
At least three people:
- You (the principal). You will complete the information regarding yourself, who you are appointing, how and when they will act and any restrictions or limitations to their powers. You can instruct someone to type or write the information for you but preferably not the person you are appointing as your attorney. If you have a physical disability which prevents you from signing, you may instruct another person to sign for you, but you must give the instructions to sign in front of the prescribed witness, and the signing must be done in your presence and the prescribed witness’ presence. This person must be eighteen years old or more, and must not be the witness or your attorney.
He/she must complete the statement beside the place for his/her signature.
- The prescribed witness. The prescribed witness must be a justice of the peace, commissioner for declarations, lawyer or notary public. The witness must be completely independent and must not sign for you (if you are physically disabled), must not be the person you are appointing as attorney, must not be a relation of yours or of the person/s you appoint as attorney. If the power includes dealing with personal/health matters, the witness must not be your current paid carer or your current health-care provider.
The witness must state that you appeared to understand what you were doing. If the witness is not sure that you understand the nature and effect of the appointment, he/she should refuse to sign the document.
- The attorney. Your attorney/s must be at least eighteen years old and must not be your current paid carer or health-care provider. The attorney’s must complete the Attorney’s acceptance form.
What happens to this document when it is completed?
You should leave the original in a safe place, such as with your bank, but it’s important to keep a copy to refer to. You should also give a copy to anyone else who may need to be
involved, such as:
- your attorney;
- your doctor;
- your solicitor;
- your accountant;
- your stockbroker.
You may also wish to carry a card in your purse or wallet, stating that you have made an enduring power of attorney, and giving details of that appointment. If your attorney will be making decisions about buying or selling land, this document must be registered with the State Land Titles Office.
How do I register the document?
It is not necessary to do so unless it is likely to be used in transactions related to buying or selling land. If you register the document, you must take the original copies to the State Land Titles Office and pay the fee.
If the power is revoked, you must deregister the document by lodging a revocation form with the Land Titles Office.