What is an Enduring Power of Attorney?

This is a legal document that lets a person appoint someone else to make decisions for them.

The powers ‘endure’ which means they continue unless revoked, until the death of the person who made the appointment, whether they are capable or incapable of making decisions about matters..

 

Why make an Enduring Power of Attorney?

Being able to appoint substitute decision makers helps individuals plan for:

  • Your financial matters which include paying expenses, undertaking a real estate transaction or carrying on a business;
  • Your personal matters relating to your personal affairs and lifestyle affairs. This includes access to support services and with whom you live.

 

Who can make an Enduring Power of Attorney?

The person who makes the appointment is known as the principal. The principal must be 18 years of age or older and have decision making capacity to make the enduring power of attorney. No one else can make a power of attorney on behalf of another person.

The person, or people, the principal appoints are known as the attorney(s).

 

What Does ‘Decision Making Capacity’ Mean?

 A person has decision making capacity if they are able to:

  • Understand the information relevant to the decision to make an enduring power of attorney and the effect of this decision;
  • Retain that information to the extent necessary to make the decision;
  • Use or weigh that information as part of the process of making the decision; and
  • Communicate the decision and their views and needs in relation to the decision in some way, including by:
    • Speech;
    • Gestures; or
    • Other means.

 

What powers can I give my Attorney?

 The principal decides the types of decisions their attorney(s) can make. These can be decisions about:

  • All financial matters; or
  • All personal matters; or
  • All personal and financial matters.

Or the principal can limit the attorney(s)’ power to making decisions about specific financial and personal matters.

 

Can I limit the powers which my attorney has?

 The principal can place conditions on the attorney(s)’ powers. The principal can also give instructions to the attorney(s) about how they want them to use the powers.

 

What can and can’t my attorney do?

 An attorney does not have power to do the following things on behalf of the principal:

  • Vote;
  • Make decisions about the care or wellbeing of their children;
  • Make (or revoke) a will;
  • Make (or revoke) an enduring power;
  • Consent to a marriage or a sexual relationship or the dissolution of a marriage;
  • Make decisions about adoption of a child;
  • Enter into surrogacy arrangements;
  • Manage the principal’s estate on their death;
  • Consent to an unlawful act.

Things an attorney can’t do unless the principal has authorised this:

  • Provide from the principal’s property for the needs of a dependant of the principal; and
  • Pay the attorney for carrying out the role of attorney.

At times, there may be a conflict between the duty of the attorney to the principal and the interests of the attorney (or the attorney’s relative, business associate or close friend). This is known as a conflict transaction.

The principal can authorise a conflict transaction but legal advice should be obtained before authorising their attorney to enter into conflict transactions.

There are some transactions that the Powers of Attorney Act 2014 says an attorney can enter into even though there may be a conflict between the duty of the attorney to the principal and the interests of the attorney. An attorney for financial matters may:

  • Give reasonable gifts from the principal’s property to the attorney, the attorney’s relatives or the attorney’s close friends; and
  • Provide for the maintenance of a dependant of the principal if this is authorised in the enduring power of attorney.

 

Who can I appoint as my Attorney?

The most important decision when making an enduring power of attorney is choosing who to appoint. With enduring powers, whoever is appointed will have the authority to make decisions for the principal after the principal no longer has decision making capacity to change or cancel the appointment. Many people choose their life partner or an adult child. Others prefer to appoint another family member, a friend with expertise in the area, an accountant, a lawyer, or a trustee company.

The principal should feel confident that the person or agency has the ability and is willing to take on the role. The person (or people) that the principal appoints needs to be eligible to be appointed as an attorney and agree to be an attorney.

A person is eligible to be an attorney if the person is:

  • 18 years of age or older; and
  • Not insolvent under administration; and
  • Not a care worker, a health provider or an accommodation provider for the principal.

A person who is an undischarged bankrupt is an example of a person who is ‘insolvent under administration’.

A person who has been convicted or found guilty of an offence involving dishonesty (that is punishable by imprisonment of three months or more) is only eligible to be appointed as an attorney for financial matters if they have disclosed the conviction or finding of guilt to the principal. That the person has disclosed the conviction or finding of guilt needs to be recorded in the enduring power of attorney.

The principal can appoint a trustee company as an attorney for financial matters only. A trustee company is not eligible to be an attorney for financial matters if a proceeding has commenced against the company to wind it up.

 

How can my Attorneys Act?

If the principal appoints more than one attorney for all or any matters the principal may appoint the attorneys to act:

  • Jointly — the attorneys must make decisions together (and all sign any document)
  • Jointly and severally — the attorneys can make decisions together or independently (and either all sign any document, or one attorney alone can sign any document)
  • Severally — the attorneys can make decisions independently (and one attorney alone can sign any document)
  • By a majority — a majority need to agree to make a decision (and the majority who agree sign any document).

If the principal does not specify how the attorneys are appointed, the attorneys act jointly. When deciding how attorneys are to act, consideration should be given to ensuring this is a workable arrangement.

 

Can I appoint an Alternate Attorney?

 The principal can appoint an alternative attorney for any attorney they have appointed. When an alternative attorney acts the principal can specify the circumstances in which an alternative attorney is authorised to act. If the principal does not specify any circumstances, an alternative attorney is authorised to act if the attorney for whom they are appointed dies, does not have decision making capacity for the matters they were appointed to make decisions about, is otherwise not willing or able to act, or is no longer eligible to be an attorney.

 

When does the Enduring Power of Attorney commence?

 The principal can nominate in the appointment form when the attorney(s)’ powers start. This can be:

  • Immediately; or
  • When the principal ceases to have decision making capacity for the matters or matter; or
  • Another time, circumstance or occasion.

The principal can specify that the power start at different times for financial and personal matters. Or the principal can specify that the power start at a different time for a specified matter. If the principal does not specify when the power starts, it begins immediately for all matters.

 

If the power starts when the principal ceases to have decision making capacity for the matter(s)

The principal can specify in the enduring power of attorney people or organisations that the attorney should notify before commencing to exercise power for the first time because the principal does not have decision making capacity for that matter.

 

If the power starts immediately

If the power starts immediately (while the principal still has decision making capacity for the matters) the principal oversees the use of the attorney’s power and the attorney acts at the direction of the principal.