What's an Enduring Power of Attorney?
If you're ever in the 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 gives your chosen person the ability to make decisions on your behalf.
The common duties your Power of Attorney may carry out for you include:
- managing your money and bank accounts
- paying your bills
- managing, selling or renting out your home
- finding you a new, more appropriate home
- signing certain documents.
Our experienced lawyers can prepare your Enduring Power of Attorney document for you, providing you with the best advice to ensure your decision is legally sound and expresses your wishes. Note that we currently only provide this service in Victoria, New South Wales, Queensland and South Australia.
What's the difference between Enduring and General Power of Attorney?
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.
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.
Who can appoint an Enduring Power of Attorney?
To create a legally binding Power of Attorney document you must be:
- 18 years old or over
- of sound and capable mind.
This means that you must complete this 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. Plus, it's important to know that no-one else can make a Power of Attorney for you.
Three things to consider when appointing your attorney
1. 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.
2. 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.
3. 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.
What happens if I don't have one?
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 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.
Can I revoke or change my Enduring Power of Attorney?
Yes, as long as you're mentally fit to do so. We can support you through this process; our lawyers are here to help.
Why do I need a lawyer?
The Enduring Power of Attorney document is one of the most crucial and powerful documents you create. Your entire estate or outcome of your life's work and effort 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 be rock solid and leave no room for error.
Our lawyers put your unique values and wishes as top priority. We take the time to explain every available option you have when completing this form and will help make sure you take 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.
'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'
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