Enduring Powers of Attorney

An Enduring Power of Attorney involves preparing a document authorising a person to make decisions and take actions in relation to personal or financial matters on your behalf if you lose the capacity to make these decisions for yourself.

The power to make decisions over personal matters will only come into effect if you lose the capability to make such decisions. Personal matters include health matters, but doesn’t extend to special personal matters or special health matters.

The power to make financial decisions can come into effect whenever you chose.

Who should you appoint as your attorney? 

This person can be a friend or relative, or a professional person. The decision should be made carefully as their decisions will have the same legal power as decisions you make about yourself. You can appoint more than one person.  You should appoint someone you trust.

 Important things to note

While Enduring Powers of Attorney are important for the elderly, it is also a good way to protect yourself and your loved ones in case something happens as part of your broader estate plan.

There are different circumstances that can lead to loss of capacity – such as an acquired brain injury, the on-set of dementia or a temporary illness or condition such as delirium.

While these are unlikely and unpleasant to think about, if you have prepared an Enduring Power of Attorney document then in the unlikely case of such a situation, your partner or loved ones will be empowered to act in your best wishes.

If you are over 18 you should make an Enduring Power of Attorney, you could do this at the same time you organise your will.  

Requirements for giving enduring power of attorney

To prepare an Enduring Power of Attorney you must have the capacity to make an enduring document.  This includes understanding the nature and effect of the power and in particular this includes understanding:

  1. that you can limit the power and instruct the attorney about how to exercise the power;
  2. when the power begins;
  3. that once the power begins the attorney has power and full control over the matter, subject to the terms;
  4. the power can be revoked;
  5. the power continues if the principal becomes a person with impaired capacity;
  6. if the principal is not capable of revoking the power, they cannot effectively oversee the use of the power either.

Enduring Power of Attorney Document

To be a valid enduring power of attorney, the document must:

  1. be in the approved form;
  2. be signed by principal;
  3. be signed and dated by eligible witness.

How often should I review my Enduring Power of Attorney?

We recommend that you review your documents regularly and consult with a lawyer if you wish to change them, especially if any of the following events occur:

  1. You change your name or anyone named in the Enduring Power of Attorney changes their name;
  2. If an Attorney dies or becomes unwilling or unsuitable to act due to ill-health, age or for any other reason;
  3. If the family situation of you or any Attorney changes (e.g marriage, divorce, matrimonial problems, children or further children, de facto relationship);
  4. If you become involved in a new business, company or Trust; and
  5. If you take up permanent residence in another state or overseas.

To find out more about preparing or reviewing your Enduring Power of Attorney and how we can assist you in preparing those documents, contact our office on (07) 3343 9522 or (07) 5446 1745 or through our contact us service here.