What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document where a person (called the principal) appoints another person or people (called the attorney) to:
- Make decisions for the principal when it is no longer possible for the principal to make decisions for themselves (because they have lost decision making capacity due to an accident or illness); and/or
- Carry out property and financial tasks on the principal’s behalf where the principal specifically asks the attorney to do the thing requested.
If you are appointed as an attorney, it is important that you read the Power of Attorney document in full and understand your responsibilities and obligations.
What types of decisions can I make?
The Power of Attorney document will contain details of the types of decisions that the principal is allowing you to assist them with.
There are four categories of decisions for which a principal can appoint you to make decisions and take actions in relation to: property and financial; healthcare; personal care; and medical research.
Property and financial matters include things like:
- paying bills, rates, insurance and other expenses that are required to be paid by the principal;
- filing tax returns;
- withdrawing and depositing money; and
- making investment decisions including buying and selling property for the principal.
Healthcare matters relate to what medical and dental care the principal receives.
Personal care matters include things like:
- deciding where the principal lives;
- deciding what the principal eats; and
- organising support for the principal with day to day care (e.g. bathing, cooking, cleaning).
Medical research matters include things like deciding whether the principal can receive an experimental drug or treatment for an illness.
My obligations as an attorney
As an attorney you are in a relationship of trust and confidence with your principal. This means you must:
- Act honestly, carefully and in the best interests of the principal.
- Exercise reasonable care when making decisions. This may mean you need to seek professional advice from a lawyer, accountant, doctor or other professional.
- Avoid acting where your interests conflict with those of your principal (unless the Power of Attorney specifically authorises you to act in a conflict).
- Only use the principal’s money for the principal’s benefit, not for your own benefit, unless otherwise specified in the Power of Attorney.
- Keep accurate records and accounts of all of your dealings with your principal’s money.
- Keep the principal’s money separate from your own money.
This also means you must not:
- Take money from your principal or use the principal’s credit card without consent.
- Put your principal’s money into your own account.
- Pay for the financial needs of anyone else using the principal’s money, unless the Power of Attorney specifically authorises you to do so.
- Pay yourself for acting as attorney, unless the Power of Attorney specifically authorises you to be paid.
- Disclose confidential information (unless authorised by the Power of Attorney or by law).
- Access what you believe to be your inheritance prior to the principal’s death.
When can I start making decisions for my principal?
You can only start making decisions for the principal if they have “impaired decision-making capacity”. This means that when the principal cannot make a specific personal or healthcare decision themselves (for example because they are in a coma), the attorney must decide. Sometimes a principal can still make some types of decisions, but there may be others the attorney must decide.
For property and financial matters, the Power of Attorney will specify when your ability to make decisions begins. It will either commence when the principal has impaired decision-making capacity or immediately (once you sign the document). If it commences immediately then you must only do things that the principal has asked you to do unless the principal has impaired decision-making capacity. If the principal later loses decision-making capacity then you are able to make decisions for them in relation to property and financial matters.
When can my principal no longer make decisions?
The principal has a right to take part in decisions affecting their life to the greatest extent reasonably possible. This means that you must support the principal to make a decision, rather than making it for them.
If you are uncertain about whether your principal can make a particular decision, you should consult the principal’s treating doctors or a specialist to obtain their view.
What should I consider when making a decision for my principal?
If you are required to make a decision, you must try to make the decision that the principal would have made in the circumstances. Accordingly, when making the decision you should consider:
- Any wishes or directions given to you by the principal in the Power of Attorney document.
- Any directions given to you in an Advance Health Care Directive (or other similar document).
- Any wishes that the principal has previously discussed with you.
- What is in the best interests of the principal.
Do I have to make decisions with anyone else?
If more than one person is appointed as an attorney for the principal the Power of Attorney will specify how decisions must be made by the attorneys. For example, this may be together or separately or that different attorneys may make decisions for different areas.
When do I stop making decisions?
Your role as an attorney ends if the Power of Attorney is revoked (or cancelled) by the principal (as long as the principal maintains decision-making capacity). A principal who revokes a Power of Attorney must take all reasonable steps to tell all attorneys affected by the revocation.
A Power of Attorney can also be fully or partially revoked by changes in an attorney’s circumstances, or those of your principal. 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 are an attorney who believes their appointment may have been revoked, or if any of the above changes in circumstances have occurred.
What happens if I do not properly perform my role as an attorney?
There can be very serious consequences if you fail to comply with your obligations as an attorney. For example, you might be subject to criminal or civil proceedings and required to compensate your principal for any loss they suffer.
Where can I get more information?
If you are unsure about your obligations as an attorney or the effect of an Power of Attorney, we recommend you get your own legal advice about the document.
You can contact the ACT Law Society if you need a referral to a lawyer who practises in this area.
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.