What is an Enduring Power of Attorney
An Enduring Power of Attorney (EPOA) is a legal document allowing you to appoint someone to make decisions on your behalf. Because it is enduring, it remains effective if you lose capacity.
What decisions can your attorney make on your behalf under an Enduring Power of Attorney
Under an EPOA, your attorney can make financial, personal, and health decisions. Financial decisions include managing finances, banking, paying bills, and selling property. Personal decisions cover where you live, daily matters like diet and dress, and social activities. Health decisions involve medical treatments and some end-of-life choices, such as life-sustaining measures. You can specify your wishes and preferences for your attorney to consider.
If permitted, your attorney may be able to renew your superannuation binding death nomination but cannot change the terms.
What is an attorney prevented from doing
An attorney must act in your best interests and cannot override your genuine decisions. They cannot make or alter your will, vote on your behalf, or change your binding death nomination on superannuation, though they can renew it under the same terms. The Powers of Attorney Act 1998 imposes strict restrictions to protect your interests, especially if you lose capacity. Attorneys cannot benefit from their actions unless you permit it, such as selling joint property where they gain proceeds, which is a conflict of interest.
When does an Enduring Power of Attorney commence and terminate
An EPOA can commence immediately or upon a specific event, like losing capacity. Immediate appointment allows your attorney to assist while you still have capacity, letting you monitor their decisions. An EPOA terminates if you revoke it, upon your death, or by a Tribunal or Court decision.
How many attorneys should you appoint
You can appoint multiple attorneys to ensure your interests are protected, providing peace of mind. They can act jointly, severally, in a majority, or successively. It’s crucial to appoint trustworthy individuals.
Does it matter where I live
Each Australian state has its version of an EPOA. While most states accept documents from others, it’s best to have one drafted in your state of residence and where your assets are located.
What happens if I don’t have an Enduring Power of Attorney, and I lose capacity
If you lose capacity without an EPOA, family members may need to apply to a Court or Tribunal to manage your affairs. This process can be time-consuming, emotional, and costly, delaying important decisions. It might also result in someone you wouldn’t choose making decisions for you. An EPOA ensures a trusted individual is ready to take over decision-making if you cannot.
