Making an Enduring Power of Attorney

Everyone should have an Enduring Power of Attorney — it’s the only way to control who can make decisions on your behalf if you can’t.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal document that gives a person you trust the legal authority to act for you and to make legally binding decisions on your behalf.

Why give a Power of Attorney?

An Enduring Power of Attorney is a legal document where you (the ‘donor’) give someone (the ‘attorney’) the power to make financial, healthcare, personal, and medical research decisions for you if, because of injury or illness, you lose the capacity to make these decisions for yourself. These decisions can include managing your banking, paying your bills, dealing with property transactions, and consenting to medical treatments on your behalf.

‘Enduring’ means that the power continues, even when you are unable to make these types of decisions for yourself. However, it will cease to be of any effect when you die.

How does it work?

You complete, sign, and have witnessed an Enduring Power of Attorney document, giving power of attorney to someone you choose.

On the document you can specify the powers you are giving and when they begin. You may also place conditions on the decisions your attorney can make.

Your attorney agrees to act as your attorney by signing the acceptance section of the document.

Your attorney’s decisions will have the same legal force as if you had made them yourself.

Responsibilities of the attorney

The attorney must:

  • act in your best interests;
  • wherever possible, make the same decision that you would have made;
  • keep accurate records of dealings and transactions made under the power;
  • avoid situations where there is a conflict of interest; and
  • keep your property and money separate from their own.

The ACT Civil and Administrative Tribunal (‘ACAT’) can review the making and operation of an Enduring Power of Attorney if there are concerns about the validity of the document or the actions of the attorney.

Why would I give someone this power?

We recommend that everyone has an Enduring Power of Attorney, as it is the only way you can have control over who will make decisions on your behalf if you are ever unable to do so. This includes situations such as:

  • while you are overseas on a holiday; or
  • while you are ill or in hospital; or
  • if you lose the capacity to make decisions for a short while, or permanently (such as through dementia, or a brain injury as a result of an accident, or because you are unconscious as a result of an accident or illness).

If you do not have an Enduring Power of Attorney, and you lose capacity, then someone may need to make an application to the ACAT to be appointed to make decisions on your behalf.

What is ‘capacity’?

To have ‘capacity’ is to know what you are doing, to understand the consequences of your actions, and to make choices based on your knowledge and understanding.

The test for having sufficient capacity to make an Enduring Power of Attorney is that you understand:

  • the powers you are giving to your attorney;
  • when the attorney can exercise these powers;
  • that you can revoke these powers whilst you have capacity; and
  • that the power will operate if you lose the ability to make legal and financial decisions.

Once you lose capacity you will not be able to supervise the use of the powers. If there is any question about your capacity, an independent medical assessment should be obtained.

Can I revoke this power?

So long as you have decision-making capacity, you can revoke (or cancel) your Power of Attorney. If you revoke your Power of Attorney, you must take all reasonable steps to tell all attorneys affected by the revocation.

Your Power of Attorney can also be fully or partially revoked by changes in your circumstances, or those of your appointed attorney. This can include making a new Power of Attorney, losing capacity, marriage, separation or divorce, bankruptcy, or death. The Power of Attorney can also cease to have effect according to its terms.

It is recommended you seek legal advice if you want to revoke your Power of Attorney, or if any of the above changes in circumstances have occurred.

Do I need to register the Enduring Power of Attorney document?

In the ACT a Power of Attorney does not need to be registered unless it is being used on the donor’s behalf in respect of the transfer of, or other dealing with, land.

If the Power of Attorney is being used for this purpose, the original document must be registered at the ACT Office of Regulatory Services, and a small fee is payable.

How do I make an Enduring Power of Attorney?

If your financial, medical and legal affairs are complex, the advice of a lawyer is helpful. Your solicitor can offering expert legal advice, prepare the required form, and arrange for you and your attorney to sign the document.

This publication is intended as a simple guide. It is not, and must not be taken to be, legal advice. For legal advice please consult a solicitor. While every care has been taken to ensure the accuracy of the information contained in this publication, the ACT Law Society does not make any representations or warranty as to the accuracy of the material in the publication. The publication has been written according to the applicable laws in Australia relevant to a resident of the Australian Capital Territory as at March 2020.

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