What is an Enduring Power of Attorney?

If you are worried about how your health and financial affairs may be taken care of if you lose capacity to do so yourself, you may want to consider appointing an Attorney through an Enduring Power of Attorney.

An Enduring Power of Attorney is a legal document prepared by a solicitor that appoints a person as an Attorney and grants them powers to manage the financial, health, and property affairs of the Principal if they are no longer able to look after them.

How is an Enduring Power of Attorney different from a General Power of Attorney?

An Enduring Power of Attorney provides the nominated Attorney with the same types of powers and responsibilities albeit under different circumstances.

A General Power of Attorney will usually become invalid if the Principal becomes incapacitated, but an Enduring Power of Attorney is still valid if the Principal loses capacity (for example they are in a coma or suffer from dementia).  

Should everyone have an Enduring Power of Attorney?

Any adult can nominate another capable adult to be their Attorney, however, it is more common for parents with adult children, the elderly, or people who have been diagnosed with a degenerative illness to appoint someone to manage their affairs on their behalf should the need arise.

An Enduring Power of Attorney can take effect at any age and can also be drafted so it becomes valid at a later, specific date, age, or the occurrence of a specific event.

Who can I appoint as my Enduring Power of Attorney?

You can appoint any person over the age of 18 to be your Attorney, who you feel is honest and will have your best interests at the forefront of their mind when they are making decisions about you on your behalf. It is helpful if the appointed person lives near you so that they can easily assess the situation requiring a decision to be made and so they can have conversations with relevant professionals on your behalf.

Your nominated Attorney cannot be someone who is being paid to care for you, nor can they be a health provider or employee at a residential service you are living at.

Your appointed Attorney does not need to have a professional background in finance, law, property, health, or any other industry in which decisions might need to be made for you. The most important thing is that you trust they will look out for you.

Joint Attorneys (such as your children) can be nominated and are useful as they must reach mutual agreement on decisions and can hold the other Attorney accountable. You should also appoint a substitute Attorney in case the primary nominees are unable to act in that capacity by choice or suitability.

What duties is an Enduring Power of Attorney responsible for?

Being someone’s Attorney is a big responsibility and the role should not be offered or accepted unless the nominated person agrees to:

• make decisions that are in the best interests of the Principal;
• act without receiving anything in return;
• only use funds to benefit the Principal or to continue established patterns of giving (such as a longstanding regular donation to a charity or a set amount of money given to a grandchild for their birthday);
• be transparent about potential conflicts of interest; and
• keep adequate records and receipts.

If an Attorney has powers relating to the healthcare of the Principal they must also agree to:

• make decisions that contribute to the Principal’s health and wellbeing;
• choose modes of care in line with the Principal’s views and wishes; and
• consider the advice of health professionals.

How do I appoint an Enduring Power of Attorney?

Your solicitor can prepare your Enduring Power of Attorney document for you. Once it has been signed by your nominated Attorney(s) it should be kept in a very safe place. Your nominated Attorney(s) should also be provided with their own certified copy as without it they will not be able to act in the capacity of your Attorney.

Many people elect to have an Enduring Power of Attorney prepared when they have their Will drafted or updated. It is important to have your Power of Attorney reviewed regularly to ensure the nominated Attorney is still the most suitable person to manage your affairs when you cannot.

If you need advice on having an Enduring Power of Attorney document prepared please contact our experienced Wills and Estates Lawyers on (07) 4052 0700.