Enduring Power of Attorney
Everyone should have an Enduring Power of Attorney — 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.
Why give an Enduring 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, medical and legal decisions for you — like managing your banking, paying the bills or property transactions.
‘Enduring’ means the power continues, even when you are unable to make these types of decisions for yourself, although 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, and 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 have the same legal force as if you had made them yourself.
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, including such situations as:
- Whilst you are overseas on a holiday;
- Whilst you are ill or in hospital;
- 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 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;
- 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?
You can revoke an Enduring Power of Attorney at any time, orally or in writing, provided you have the relevant capacity to do so.
Sometimes an Enduring Power of Attorney can be revoked unintentionally, for example, by subsequent marriage or divorce, or death of a joint attorney. It is recommended you seek legal advice if any one of these events occurs.
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, 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 fee is payable.
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.
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 prepare the required form and arrange for you and your attorney to sign the document offering expert legal advice.
Public Trustee for the ACT — More information on an Enduring Power of Attorney
Public Advocate of the ACT — More information on an Enduring Power of Attorney
Respecting Patient Choices Program — Information on advance care planning
ACT Civil and Administrative Tribunal (ACAT) — Information on Guardianship and Management of Property
This publication is intended as a simple guide, and is not intended as legal advice. 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 2014.