What is an Enduring Power of Attorney?

Key points:

• An EPOA can make decisions about your personal affairs, however, are limited by the State or Territory you live in
• You should choose someone you trust as an EPOA to make decisions on your behalf
• If you made an EPOA document under duress, it will automatically be revoked

What is an Enduring Power of Attorney?

An Enduring Power of Attorney (EPOA) is one such document that appoints a person to step in when you lose legal capacity. This document only comes into play when you are no longer able to make decisions for yourself.

You should have measures in place before you become ill, however, you can still organise documents if you have been assessed by a doctor as having mental capacity to make decisions.

An EPOA can make big or little decisions on your behalf about your life that can include financial, lifestyle or medical decisions. However, the rules about what decisions you can make as an EPOA are different depending on what State or Territory you live in.

Some States/Territories are very strict on what your EPOA is allowed to do. Some will not allow your EPOA to make any decisions around lifestyle or medical treatments. Instead, these roles or responsibilities fall under either an Advanced Care Directive or an Enduring Power of Guardianship.

For instance, in Victoria, if you were made a medical treatment decision maker then you can make medical decisions on your older loved one’s behalf.

Whereas in Western Australia, the EPOA only allows decisions related to financial matters or property. Your EPOA cannot make any personal, lifestyle or medical decisions on your behalf.

In South Australia, your EPOA is strictly related to financial matters and an EPOA from another state will not be recognised beyond that capacity. For medical, lifestyle or accommodation decisions, an Advance Care Directive will need to be signed under witness supervision and shared with substitute decision-makers and doctors.

If you want to appoint someone to make personal, lifestyle or medical decisions, you may need to look at an Enduring Power of Guardianship or an Advance Care Directive.

While you still have mental capacity, it is important to appoint someone as your EPOA, because once you lose capacity you are not legally allowed to organise legal documents like an EPOA or Will.

An EPOA document is one of the best ways to make sure your personal matters are handled appropriately and in a way that you would want them to.

You need to take into account who is the best and most trusted person in your life to be your EPOA. When choosing an EPOA, you should choose someone who would make decisions based on what you would decide if you were still able to.

How do you appoint an Enduring Power of Attorney?

There are a number of ways to appoint an Enduring Power of Attorney.

Your first option would be going to your solicitor or lawyer who can help to create a document for appointing your EPOA.

You can also choose for the Public Trustee in your State or Territory to be appointed as your EPOA. Contact the Public Trustee near you for more information about how to organise this.

Some States and Territories have an ‘Enduring Power of Attorney Kit’, which is considered a do-it-yourself (DIY) approach. The kit does cost money but it has all the documents you need to organise your EPOA along with instructions on how to use it and what to do once you finish filling out the document.

You can find these kits being sold through legal services or available for purchase from your State or Territory website.

When implementing an Enduring Power of Attorney you will need to sign the form with two adult witnesses present. That person can be someone authorised to witness affidavits, a medical doctor, a Justice of the Peace, a lawyer, or a police officer above the rank of sergeant.

You can not use one of your Attorney’s, a relative of yours or your Attorney’s relative, a care worker or accommodation provider to be a witness.

If your capacity to make decisions is in doubt, then you will need a doctor’s written note confirming that you are able to understand the nature and effect of the document you are signing.

Your EPOA will be activated when your doctor believes you are no longer able to manage decision making.

You do have the option to appoint a Substitute Power of Attorney, who can step in if your normal EPOA is unable to act.

This could be in the case of your Attorney dying, becoming bankrupt, or unable to act. You can choose another family member or trusted friend, or even the Public Trustee.

Before appointing an Attorney, make sure the person is aware and willing to take up the role, as it does involve work on their part.

If you lose legal capacity and don’t have an Attorney or are no longer able to manage your finances, the Guardianship Tribunal or Supreme Court will appoint you a financial manager.

Rights, responsibilities and obligations

Your Enduring Power of Attorney must act in your best interests at all times and should include you in the decision making process where possible.

Make sure that you choose the right person to fulfil the obligations of being your EPOA.

One of the main responsibilities your EPOA must undertake is managing and paying your bills and accounts. Additionally, Attorney’s are able to buy or sell property for you if it’s in your best interest. Your Attorney does not have any liability over your personal debt.

A huge responsibility for your EPOA is keeping accurate records of all transactions with your money. Any losses or inappropriate use of your money can make your Attorney personally or criminally liable.

If your Attorney abuses their position, you can take legal action to protect yourself and your finances. If you are concerned your EPOA is misusing their powers, then you should seek legal advice and contact your Public Advocate. Similarly, if you are a family member and are concerned about a misuse of EPOA powers, you can make a complaint to the Public Advocate.

If you don’t have enough money to cover your bills, your Attorney does not have to use their own money, but your Attorney will inform your creditors when this arises.

You are able to limit the power your Attorney has over decisions for yourself if you stipulate it in your EPOA documentation from the beginning. If there is no limit in place, your Attorney can authorise anything on your behalf.

Changes to your Enduring Power of Attorney

There can be many reasons for changing your EPOA, like a relationship change with the current Attorney, your Attorney losing the capability to hold that position for you, or your Attorney is too busy to undertake their responsibilities.

If you decide afterwards that you want to change your EPOA, you still can as long as you still have the mental capacity.

For every State and Territory, there are slightly different procedures to follow in revoking your EPOA. That generally includes either filling out a form for your State or Territory, or writing down on paper that you have revoked the responsibilities of your Attorney.

You also need to tell your Attorney that they no longer hold the position, otherwise they can continue accessing your finances.

An Enduring Power of Attorney will automatically be revoked if you were forced to sign under duress.

To get assistance or more information about organising your Enduring Power of Attorney, visit:

Australian Capital Territory – Public Advocate, call on 02 6205 2222

New South Wales – NSW Trustee & Guardian, call on 1300 109 290

Northern Territory – Office of the Public Guardian, call on 1800 810 979

Queensland – Office of the Public Advocate, call on 07 3738 9513

South Australia – Office of the Public Advocate, call on 1800 066 969

Tasmania – Office of the Public Guardian, call on 1800 955 772

Victoria – Office of the Public Advocate, call on 1300 309 337

Western Australia – Office of the Public Advocate, call on 1300 858 455

Your EPOA documents should also be backed up by an Advanced care Directive and Will, which will create a strong estate plan.

Why did you decide to put an Enduring Power of Attorney in place? Tell us in the comments below.

Article originally published October 20, 2021 by author Liz Alderslade.

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