Enduring Power of Attorney

What is Enduring Power of Attorney?

An enduring power of attorney is a legal document that appoints someone of your choosing to make personal, financial, legal and property decisions on your behalf. They would do this if you lose capacity to make decisions yourself because of illness or injury.

An enduring power of attorney is a formal document that appoints a trusted person such as a family member or friend (referred to as ‘the attorney’) to make financial, legal and property decisions on your behalf in the event that you lose the mental capacity to do so yourself. You can appoint more than one enduring power of attorney. The person making the enduring power of attorney is known as the ‘Principal’.

Unlike a general power of attorney, which appoints someone to make decisions on your behalf for a specific period or event, an enduring power of attorney makes decisions for you on an indefinite basis, such as if your health is failing or you lose cognitive function.

In some states, the Public Guardian can also be appointed to make decisions for you under an enduring power of attorney.

What can an Enduring Power of Attorney do?

An enduring power of attorney:

  • allows the appointed person(s) to operate bank accounts
  • can enable the appointed person(s) to sell your property
  • can enable the appointed person(s) to vote at meetings on your behalf
  • is like a general power of attorney but it remains valid (endures) after you lose legal capacity to make decisions for yourself
  • can be anyone over the age of 18 years who can assist an individual with money or property. It can be a relative, friend or professional adviser. It does not have to be a lawyer or solicitor.

What can't an Enduring Power of Attorney do?

An enduring power of attorney does not allow the appointed person(s) to:

  • make personal or medical decisions on your behalf
  • make a will
  • swear or affirm your affidavit
  • do anything that cannot be delegated by law.

An enduring power of attorney is not the same as a will and can only be made by a person if they have the legal capacity to create an enduring power of attorney.

An enduring power of attorney must also be explained to you and witnessed by a prescribed person, such as a registrar of a Local Court, a barrister or solicitor, or a licensed conveyancer, so it’s a good idea to go to a lawyer to draw one up.

They will also sign a certificate stating you understand that the document will still be valid if you lose your mental capacity. The chosen ‘attorney’ must also agree to and sign the power of attorney.

If you don’t have an enduring power of attorney and a family member or friend needs to make financial decisions on your behalf, they will have to apply to be appointed to the role, either through the Civil and Administrative Tribunal or the Supreme Court. This can take a long time so it’s much easier to give someone an enduring power of attorney.

An enduring power of attorney can either be made effective immediately or come into effect on a later date. However, once you have lost legal capacity, you cannot make or withdraw an enduring power of attorney.

Every state and territory also has its own rules about enduing power of attorney so you will need to contact the agency in your state for more information.

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