Enduring Power of Attorney

An Enduring Power of Attorney authorizes someone else to act on your behalf if you become mentally or physically incapacitated. For example, they can:

  • Manage your bank accounts or share portfolio
  • Sell your property
  • Pay your bills, and in some cases,
  • Make medical decisions for you, etc.

You will need an Enduring Power of Attorney if you:

  • Develop Alzheimer’s disease
  • Receive a brain injury during an accident
  • Are temporarily unconscious due to an illness, etc.

An Enduring Power of Attorney is designed to be used only if and when you become mentally or physically incapacitated and unable to make decisions. On the other hand, a General Power of Attorney is used in most day-to-day situations and when you want to nominate someone to act on your behalf with respect to financial matters. Click here for more info on Legal123′s Power of Attorney Form.

 

Below is a list of some of the most frequently asked questions about Enduring Powers of Attorney. Click on any of the questions to reveal the answer.

 

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What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document where you appoint someone to look after your assets and financial affairs while you are alive but when you lose mental capacity. For example, you may end up with a temporary or permanent mental incapacity due to Alzheimer’s disease, a brain injury or be temporarily unconscious due to an accident or illness.

In some Australian States an Enduring Power of Attorney document may also cover making medical, as well as financial, decisions.

What do the terms ‘Enduring’ and ‘Attorney’ mean?
The term ‘Enduring’ means the power to act on your behalf continues even after you are unable to make financial (or medical) decisions for yourself.

The person you appoint to act on your behalf is called your ‘Attorney’ or ‘Agent’. They do not have to be a lawyer, just someone you trust to act in your best interests.

In an Enduring Power of Attorney document, you are referred to as the ‘Donor’ or ‘Grantor’. This has nothing to do with donating organs, it just means you are giving your decision-making powers to someone you trust.

Is an Enduring Power of Attorney different from a General Power of Attorney?
An Enduring Power of Attorney becomes effective after you have lost mental capacity.

An Enduring Power of Attorney is in the same format as a General Power of Attorney but states that you authorize your Attorney to act on your behalf after you lose mental capacity. In addition, unlike a General Power of Attorney, your Attorney must sign the document in order to accept this decision-making power.

A General Power of Attorney will not be effective if you lose mental capacity.

A General Power of Attorney is a legal document that gives the power to another person to manage your financial (including property) affairs – and usually for a specified period of time. It is intended to be used when you are not physically able (travelling, confined to a hospital, etc.) or prefer another person to act on your behalf. A General Power of Attorney never gives your Attorney the power to make medical decisions for you.

Click here for more information and to download a Power of Attorney Form.

What is the difference between an Enduring Power of Attorney and a Living Will?
A Living Will instructs your doctor to administer no life-sustaining procedures if you are terminally ill or permanently unconscious. Being terminally ill generally means you have less than 6 months to 1 year to live. If you do not want artificial nutrition or hydration or other life sustaining measures, for example, the law requires that you say so in a legal document.

Living Wills are also sometimes referred to as ‘Medical Directives’ or ‘Medical Declarations’. Please be aware that Living Wills are only recognised in some Australian States.

If I have a Living Will do I need an Enduring Power of Attorney too?
Yes, if you live in a State or Territory that recognizes Living Wills, you will most likely need an Enduring Power of Attorney too.

Living Wills only deal with medical decisions and healthcare. Enduring Powers of Attorney deal with financial and legal decisions.

If you live in one of the few States that permit an Enduring Power of Attorney to include medical as well as financial decisions, only an Enduring Power of Attorney may be required.

What types of decisions are covered in an Enduring Power of Attorney?
An Enduring Power of Attorney generally covers financial and legal decisions, for example:

  • Managing bank accounts
  • Selling property
  • Managing your share portfolio
  • Paying your bills, etc.

In addition, some Australian States allow medical decisions to be included, for example:

  • Turning off life-support machines
  • Medical or surgical procedures
  • Administering long term or rehabilitation care
  • Dental treatment, etc.

However, decisions to do with termination of a pregnancy, tissue removal for transplants or procedures that may lead to permanent infertility cannot be made by your ‘Attorney’.

Which States allow medical decisions to be included in an Enduring Power of Attorney?
Victoria requires separate Enduring Powers of Attorney for financial and medical instructions. In this State the document that covers medical decisions is called a Medical Enduring Power of Attorney.

NSW also requires separate Enduring Powers of Attorney for financial and medical instructions. In this State the document that covers medical decisions is called an Enduring Guardianship.

Queensland permits Enduring Powers of Attorney to cover both financial and medical instructions in the same document.

Western Australia does not recognise Enduring Powers of Attorney that cover medical instructions.

You need to check your individual State or Territory requirements. Alternatively, the Enduring Power of Attorney offered by Legal123.com.au has an easy-to-use guide that summarises exactly what the requirements are.

When does an Enduring Power of Attorney take effect?
An Enduring Power of Attorney only takes effect if and when you become incapable of making your own decisions, that is, you are no longer able to understand information and reason things out for yourself.

In particular, a person is said to lack the capacity to consent to medical treatment if they are incapable of:

  • Understanding the nature and effect of the proposed treatment or procedure, or
  • Indicating whether or not they consent to the proposed procedure or treatment

Most of the time these situations are very clear to your doctors and those around you. In rare circumstances, a specialist doctor’s report may be required.

How many people can I appoint as ‘Attorneys’ to carry out my wishes?
One person is normally appointed as your ‘Attorney’. However, you may wish to consider appointing an alternate in the event your ‘Attorney’ is unable to act on your behalf, maybe through incapacity or death.

You should choose someone you trust to carry out your wishes. We also recommend that you discuss your wishes with them first.

Does my ‘Attorney’ need to sign to indicate their acceptance?
Yes. Unlike a General Power of Attorney, your ‘Attorney’ (and any alternate you nominate) must sign the Enduring Power of Attorney document to indicate their acceptance.
What do I do once my Enduring Power of Attorney is signed and witnessed?
At a minimum, you should keep your Enduring Power of Attorney in a safe place and ensure you tell your family where to find it. Keeping it with your Will is obviously a good idea.

In addition, it might also be appropriate to give a certified copy of your Enduring Power of Attorney to your ‘Attorney’ as well as your doctor.

Some Australian States and Territories require Enduring Powers of Attorney to be registered at the Land Titles office (or equivalent in your State) if they deal with your property.

You need to check your individual State or Territory requirements. Alternatively, the Enduring Power of Attorney offered by Legal123.com.au has an easy-to-use guide that summarises exactly what the requirements are.

Can I change my Enduring Power of Attorney after it’s signed?
You might want to change your Enduring Power of Attorney for any number of reasons:

  • Change your nominated ‘Attorney(s)’
  • Your health circumstances have changed
  • Your financial circumstances have changed, etc.

In these cases the easiest thing to do is make a new Enduring Power of Attorney. This new Enduring Power of Attorney will include a clause that revokes any previous Enduring Powers of Attorney and any nominated ‘Attorneys’. You may also want to:

  • Tell your old ‘Attorney’ that their power is withdrawn, and
  • Destroy old documents and any copies

 

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