Please note that we currently only provide this service in Victoria, New South Wales, Queensland and South Australia.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document that gives a person you trust the power to make important financial, property and personal decisions for you, the ‘principal’, when you can no longer make them yourself.
If you're ever in a position where you can no longer make or understand your own decisions - for example, after you've been in an accident, you've fallen ill, or even if you are just overseas and can't be reached - an Enduring Power of Attorney is essential for your chosen person to be able to make decisions on your behalf.
Speak with our dedicated team today about how we can help you write an Enduring Power of Attorney, making sure it's legally sound.
The common duties your Power of Attorney may carry out for you include:
- managing your money and bank accounts
- paying your bills
- managing your real estate
- selling or renting out your property
- finding you a new, more appropriate home
- signing certain documents.
Writing an Enduring Power of Attorney
Enduring Powers of Attorney are complex and have become more detailed and complicated over the years. We recommend seeking legal advice from a wills and estates lawyer to ensure your documents accurately reflect your wishes. Our expert wills and estates lawyers can answer any questions you might have and ensure you understand the decisions you make.
Once your Enduring Power of Attorney is filled in, it needs to be signed and witnessed properly for it to be legally valid. It then needs to be stored in a safe place. At Maurice Blackburn, we can store all your wills and estate planning documentation in a safe and secure place to give you peace of mind.
Medical decisions require a separate document
It's important to note that you need to create a separate document if you want the same (or another) person to make decisions about your medical treatment. The form's name differs between each state, but the roles are similar to those of a Medical Treatment Decision Maker.
Appointing an Attorney
To create a legally binding Power of Attorney document you must be:
- 18 years old or over
- of sound and capable mind.
You cannot appoint:
- your care worker
- your health provider, or
- your accommodation provider.
For financial matters, you can appoint a trustee company.
You must complete the Enduring Power of Attorney document (and have it witnessed) while you are competent and able to understand what you are doing. In other words, before you lose decision-making capacity.
It's important to note that no one else can make a Power of Attorney for you.
Three things to consider when appointing your attorney
- Choosing who your attorney will be
It should be someone you trust and know will act in your best interests, understand your views and carry out your wishes. Your chosen person can be any competent adult who is willing and able to act on your behalf.
- When they get power
You choose when your attorney starts to act - it could be as soon as the form is completed, or only if and when you lose mental capacity. If you choose for your attorney to start to act while you have capacity, they can only do what they are directed to do.
- What they'll have authority over
You can include a set list of conditions and restrictions for your attorney to abide by. This part is particularly important as it can impact your attorney's ability to do their job efficiently if your document is not clear.
Legal challenges to an Enduring Power of Attorney
Legal challenges to an Enduring Power of Attorney can happen when someone is concerned about the validity, misuse or abuse of the Enduring Power of Attorney.
For example, a challenge might be made if there are allegations of fraud or undue influence over the creation or execution of the Enduring Power of Attorney, or there may be concerns the Enduring Power of Attorney was made when the principal was not of sound mind.
Legal challenges of an Enduring Power of Attorney usually involve court proceedings, so we recommend seeking expert legal support from one of our wills and estate lawyers – who also have experience with elder law or elder abuse.
Get in touch
Our expert wills and estate planning team are here to help.
Frequently asked questions about Powers of Attorney
If you haven't appointed your own attorney and you lose capacity, one of two things can happen to ensure your best interests and human rights are protected:
- Your spouse or close family member can apply to the Civil and Administrative Tribunal, or equivalent, in your state to become your financial and personal decision-maker.
- The Tribunal will choose an independent guardian or administrator if they don't think your family member is fit to take on this role.
The main difference between the two is when and how long the attorney's power stands. A General Power of Attorney document means that a person can make your financial decisions while you have full decision-making capacity.
If your capacity changes, and you can no longer make or understand your own decisions, only an Enduring Power of Attorney will be legally valid.
An Enduring Power of Attorney is one of the most important documents you need when planning your future. Your whole estate could fall into the hands of the person (or people) you nominate as your attorney.
So, while you can complete this document yourself without any legal advice, working with an experienced lawyer means your document will leave no room for error.
Our lawyers make your unique values and wishes the top priority. We take the time to explain every available option you have and will help make sure you make the best and smartest decisions for your situation.
We will also ensure that:
- You understand every possible outcome from giving someone power over your financial and personal decisions.
- You include (and exclude) the correct vocabulary that ensures your wishes are clear and will be followed in your absence without question.
- There is no ambiguity in your document that your family, close relatives or the court could argue over or challenge.
- Your final document is properly witnessed.
Contact us today and speak with one of our expert Wills and estate lawyers.
Please note that we currently only provide this service in Victoria, New South Wales, Queensland and South Australia.
Yes, if you have the mental capacity to do so. We can support you through this process; our lawyers are here to help.
We recommend seeking legal advice so you can understand any legal implications and the options available to you. We can then help you prepare a revocation, have it signed and witnessed and notify all relevant parties.
The decisions that an attorney appointed under an Enduring Power of Attorney can make will depend on what state they're in (or where the document was created). Generally, they will be able to make a range of financial, legal and property-related decisions on your behalf. This can include managing your bank accounts, paying bills, selling or buying property, making investments and handling legal matters.
Yes, you can appoint multiple attorneys. You have the option to appoint them to act jointly (requiring all attorneys to agree on decisions) or severally (allowing each attorney to act independently).
It's essential to carefully choose an attorney you trust and have open communication with them about your wishes and expectations. Additionally, you can include specific instructions, limitations, or conditions in your Enduring Power of Attorney to guide their decision-making.
Having your Enduring Power of Attorney created with a lawyer also ensures your document leaves no room for error and that your wishes will be reflected very specifically.
If there is a dispute or concern about an Enduring Power of Attorney, we recommend seeking legal advice. Depending on the nature of the dispute, mediation, negotiation, or court proceedings may be necessary to resolve the issue.
'We learned that if Mum had something called an Advance Care Directive in place, we would have known what she’d want us to do'
Ann's story
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