What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a document giving another person the power to make personal and financial decisions on your behalf. It continues to be legal binding if you lose the capacity to make the decisions yourself.

To grant an Enduring Power of Attorney a specific form must be signed by yourself and the attorney outlining the types of decisions the attorney is able to make on your behalf and other details relating to the exercising of the power.

Why give a Power of Attorney?

A Power of Attorney is extremely important as you may not always be able to make decisions when you need to. In circumstance where you become disabled or ill and are unable to make decisions, or if you are simply travelling overseas, a power of attorney means that your wishes can be carried out.

Types of Decisions

Your attorney has power to make decisions about personal and health matters (including day to day issues as to where you live, diet and health care etc) and any financial matters (including banking, investing money, etc).

Who Should be my Attorney?

It is important that you choose someone who you trust. This may be a spouse, family member or close family friend who you feel has the appropriate skills to make the decisions required on your behalf.

You are able to appoint more than one attorney if you wish.

Powers of the Attorney

You can specify and restrict the decisions that you want your attorney to make. These must be clearly outlined within the Enduring Power of Attorney document.

You are also entitled to revoke the power of attorney at any time so long as you are capable of understanding the decision.

Responsibilities of the Attorney

The attorney’s responsibilities are very clearly set out in legislation. The law ensures that your interests are paramount and that your wishes are respected.

If a family member or other person does not feel that the attorney is acting in your best interests they can make an application to the Guardianship and Administration Tribunal or the Supreme Court. The attorney can be required to provide a detailed account of all money that has been transacted, and any decisions that have been made on your behalf. The Court and Tribunal also have the power to remove the attorney and appoint a new attorney.

The attorney has specific duties to keep records, keep your property separate from the attorney’s property and not give away any of your property.

What Happens if I do not have a Power of Attorney?

If you do not have an enduring power of attorney and lose the capacity to make decisions on your own behalf the government can step in to take responsibility for these decisions. This may include the Public Trustee.

An application can also be made to the court or the Guardianship and Administration Tribunal in these circumstances to appoint an attorney.

Can I limit my Attorney’s Power?

Yes, you can detail decisions you do not want your attorneys to make. You can also list specific duties you would like your attorney to attend to and your attorney must act in concurrence with your instructions.

Can I appoint more than one Attorney?

Yes, you may appoint multiple attorneys. If you appoint two or more attorneys you must decide whether they must act together in making decisions involving your affairs or whether each can act separately.

Due to the difficulties that can arise from conflict between attorneys or from obtaining multiple signatures under most circumstances it is recommended to appoint only one or two attorneys.

You may also name a reserve attorney (or successor) who will act in the event that the first person you named dies, becomes disabled or no longer wishes to act as your attorney.

Should I pay my Attorney?

You do not need to pay your attorney(s) for the Power of Attorney to be effective.

Generally payment is only made when a trust company or other professional person/organisation is acting as your Attorney.

When does my Attorney’s Power Begin?

A Power of Attorney can start on a date specified in the document or upon the occurrence of an event (such as disability or incompetence). If there is no specified date or event a Power of Attorney starts immediately upon execution.

How much control will my Attorneys have?

As long as you remain legally competent you retain full control over your affairs.

How long does the Power continue?

For your personal and health matter it continues as long as you are incapable of making decisions or understanding the effects of a decision.

For your financial matters it stays in effect for your lifetime or until it is revoked.

How can I be sure that my Attorney will Act in my best interests?

Anyone who suspects that the power of attorney is not being applied properly can inform the Adult Guardian. An application could also be made to the Supreme Court.

They can require your attorney to provide accounts and details about any decisions that have been made.

An attorney who does not protect your interests adequately can be removed.

Can I change or revoke this Power of Attorney?

Yes, you can cancel the power of attorney at any time as long as you are capable of understanding what you are doing.

If you do however decide to change or revoke this power you must inform your attorney.

Is there anything else that will end this Power?

Yes, several events will bring an Enduring Power of Attorney to an end:

• If you get married it is revoked unless your new spouse is already your attorney
• If you get divorced
• If you die
• If your attorney withdraw
• If your attorney becomes your paid health care provider
• If your attorney becomes incapable
• If your attorney becomes bankrupt or insolvent
• If your attorney dies

At FC Lawyers, our team are experienced in providing advice regarding Enduring Powers of Attorney and related matters. We understand that these matters can be sensitive and we will take all care to ensure that your requirements are met in a sensitive and ethical manner.

Contact our team today to discuss your estate planning needs.