What are they?
An Enduring Power of Attorney is a legal document that allows a nominated person (your ‘attorney’) to make legally binding decisions on your behalf. You can specify which powers you wish your attorney to have, which may include:
- Financial decisions, such as banking, investments, property and bills;
- Personal care, such as where you live and your recreational activities;
- Health care, such as consenting to medical treatment; and
- Medical research, such participating in a clinical trial.
An Enduring Power of Attorney can be made by anyone over the age of 18 with decision-making capacity. Your nominated attorney does not need to have legal qualifications, but you should pick a trusted person who will act in your best interest. You may have more than one attorney.
Why do you need one?
An Enduring Power of Attorney is not just for the elderly. They can take effect when you lose decision-making capacity, which can happen suddenly and at any time. It is therefore important to create one when you are of sound mind. An Enduring Power of Attorney can take effect in the following circumstances:
- If you suffer a sudden accident;
- If you are ill or in hospital; or
- If you lose capacity to make decisions e.g., dementia or brain damage.
If you lose decision-making capacity and do not have an Enduring Power of Attorney, the ACT Civil and Administrative Tribunal will appoint a suitable person as your guardian. If the ACAT determines there is no suitable person, it may appoint the Public Trustee and Guardian.
It is highly advantageous to have an EPOA in place before you lose capacity. Applying to ACAT can take months for the application to be finalised, and you may end up with a government employee making personal decisions in relation to your day-to-day care, assets and living conditions.
Do I need one in each State?
Each State and Territory in Australia has different requirements for an Enduring Power of Attorney. For example, in the ACT all decisions are covered in an Enduring Power of Attorney created under the Powers of Attorney Act 2006 (ACT). Comparatively, in NSW you must create an Enduring Power of Attorney for financial and legal decisions, and a separate document called an Appointment of Enduring Guardian for health and personal care decisions.
While different states may recognise Enduring Powers of Attorney made in other jurisdictions, it is common to prepare Enduring Powers of Attorney documents for each state that you own property in or commonly reside in. This can sometimes be easier and more cost effective than registering an Enduring Power of Attorney from one State into another State. If you live between states, own property in multiple states, or are thinking of moving to a new state, we recommend seeking legal advice to see how this may affect your Enduring Power of Attorney.