Monday, 2 August 2021
Everyone should have an Enduring Power of Attorney — it’s the only way you can choose and 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 or persons you trust the legal authority to act for you and to make legally binding decisions on your behalf while you are living.
Why give an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document where you (the ‘appointor’) give someone (the ‘attorney’) the power to make financial, healthcare, personal care, and medical research decisions for you.
Financial decisions can include managing your banking, paying your bills, as well as dealing with property transactions. Personal care decisions may concern where you should live and with whom you should live. Health care decisions may include consenting to or refusing medical treatments, consent to organ donation as well as end of life decisions. Medical research decisions may concern consent to medical treatments which are not official recognised at the time (for example, the consent to use a new cancer treatment).
What does ‘enduring’ mean?
‘Enduring’ means that the power continues while you no longer have decision-making capacity and can no longer make those decisions for yourself. However, it will cease to be of any effect when you die.
Can everyone make an Enduring Power of Attorney?
Any person who has attained 18 years and has capacity can make an Enduring Power of Attorney.
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 powers will operate or continue to operate if you no longer have decision-making capacity to look after your financial, legal and non-financial affairs.
Once you lose capacity you will not be able to supervise the use of your attorney’s powers and you can no longer revoke your Enduring Power of Attorney. If there is any question about your decision-making capacity, an independent medical assessment should be obtained.
How does an Enduring Power of Attorney work?
To put an Enduring Power in place, you complete and sign an Enduring Power of Attorney document in the presence of two witnesses. The document names the person or persons you choose as your attorney or attorneys.
We recommend that you not only nominate one person but also consider nominating a further person who can act as your attorney should your primary attorney no longer be able to act, has died, or no longer wishes to act as your attorney.
Your Enduring Power of Attorney can specify the powers you are giving to your attorney and when such powers begin. You may also place conditions on the decisions your attorney can make, as well as provide directions to your attorney.
Your attorney agrees to act as your attorney by signing the acceptance section of the document. They can sign their acceptance at any time after you have signed your Enduring Power of Attorney. The signature of your attorney does not need to be witnessed.
What are the responsibilities of the attorney?
Your 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.
You may give your attorney additional powers. For example, you may allow your attorney to pay your spouse’s and your children’s reasonable living expenses out of your funds.
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 choose and have control over who can deal with your affairs on your behalf if you be unable to do so. This includes situations such as:
- while you are overseas on a holiday or for work; 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).
What happens if I do not have an Enduring Power of Attorney?
If you do not have an Enduring Power of Attorney, if you lose decision-making capacity and it becomes necessary to make financial or non-financial decisions on your behalf, then someone needs to make an application to the ACAT to be appointed as your financial manager and/or guardian. The ACAT will appoint a ‘suitable person’ to such role or roles. Should the ACAT be of the view that there is no suitable person, it may appoint the Public Trustee and Guardian.
Can I revoke an Enduring Power of Attorney?
So long as you have decision-making capacity, you can revoke your Enduring Power of Attorney. If you revoke your Enduring Power of Attorney, you must take all reasonable steps to tell all attorneys affected by the revocation.
Your Enduring 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 Enduring Power of Attorney, losing capacity, marriage, separation or divorce, bankruptcy, or death. The Enduring 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 Enduring 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 an Enduring Power of Attorney does not need to be registered unless it is being used on your behalf in respect of the transfer of, or other dealing with, land.
If the Enduring Power of Attorney is being used for this purpose, the original document must be registered at ACT Land Titles, and a registration fee is payable.
What should I do next?
The advice of a solicitor is helpful in ensuring your Enduring Power of Attorney is properly drafted to appoint the persons you trust, as well as to ensure that the Enduring Power of Attorney addresses all your concerns and wishes, and is properly executed.
Your solicitor can offer expert legal advice, and arrange for you and your attorney(s) to sign the document as required by the Powers of Attorney Act.
Finding a lawyer specialising in Powers of Attorney
- Online search: Find a lawyer – select ‘Powers of Attorney’ from ‘Areas of Practice’
- Online search: Find a law firm – select ‘Powers of Attorney’ from ‘Areas of Practice’
- Call the Law Society on 02 6274 0300 and we can put you in touch with a lawyer or a firm who can help you