Understanding an Enduring Power of Attorney

An Enduring Power of Attorney is a legal document where you (the ‘appointor’) give someone (the ‘attorney’) the power to make financial, healthcare, personal care, and medical research decisions for you.

Financial decisions can include managing your banking, paying your bills, as well as dealing with property transactions. Personal care decisions may concern where you should live and with whom you should live. Health care decisions may include consenting to or refusing medical treatments, consent to organ donation as well as end of life decisions. Medical research decisions may concern consent to medical treatments which are not official recognised at the time (for example, the consent to use a new cancer treatment).

To put an Enduring Power in place, you complete and sign an Enduring Power of Attorney document in the presence of two witnesses. The document names the person or persons you choose as your attorney or attorneys.

We recommend that you not only nominate one person but also consider nominating a further person who can act as your attorney should your primary attorney no longer be able to act, has died, or no longer wishes to act as your attorney.

Your Enduring Power of Attorney can specify the powers you are giving to your attorney and when such powers begin. You may also place conditions on the decisions your attorney can make, as well as provide directions to your attorney.

Your attorney agrees to act as your attorney by signing the acceptance section of the document. They can sign their acceptance at any time after you have signed your Enduring Power of Attorney. The signature of your attorney does not need to be witnessed.

We recommend that everyone has an Enduring Power of Attorney, as it is the only way you can choose and have control over who can deal with your affairs on your behalf if you be unable to do so. This includes situations such as:    

• while you are overseas on a holiday or for work; or

• while you are ill or in hospital; or

• 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).

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; and
• that the powers will operate or continue to operate if you no longer have decision-making capacity to look after your financial, legal and non-financial affairs.

Once you lose capacity you will not be able to supervise the use of your attorney’s powers and you can no longer revoke your Enduring Power of Attorney. If there is any question about your decision-making capacity, an independent medical assessment should be obtained.

If you do not have an Enduring Power of Attorney, if you lose decision-making capacity and it becomes necessary to make financial or non-financial decisions on your behalf, then someone needs to make an application to the ACAT to be appointed as your financial manager and/or guardian. The ACAT will appoint a ‘suitable person’ to such role or roles. Should the ACAT be of the view that there is no suitable person, it may appoint the Public Trustee and Guardian

So long as you have decision-making capacity, you can revoke your Enduring Power of Attorney. If you revoke your Enduring Power of Attorney, you must take all reasonable steps to tell all attorneys affected by the revocation.

Your Enduring Power of Attorney can also be fully or partially revoked by changes in your circumstances, or those of your appointed attorney.

This can include making a new Enduring Power of Attorney, losing capacity, marriage, separation or divorce, bankruptcy, or death. The Enduring Power of Attorney can also cease to have effect according to its terms.

It is recommended you seek legal advice if you want to revoke your Enduring Power of Attorney, or if any of the above changes in circumstances have occurred.

In the ACT an Enduring Power of Attorney does not need to be registered unless it is being used on your behalf in respect of the transfer of, or other dealing with, land.

If the Enduring Power of Attorney is being used for this purpose, the original document must be registered at ACT Land Titles, and a registration fee is payable.

The person you chose (also known as an 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.

You may give your attorney additional powers. For example, you may allow your attorney to pay your spouse’s and your children’s reasonable living expenses out of your funds.

The ACT Civil and Administrative Tribunal (ACAT) can review the making and operation of an Enduring Power of Attorney if there are concerns about the validity of the document or the actions of the attorney.

The Power of Attorney document will contain details of the types of decisions that the you (known as the principal) is allowing you to assist them with.

There are four categories of decisions for which you can appoint someone to make decisions and take actions in relation to: property and financial; healthcare; personal care; and medical research.

Property and financial matters include things like:

• paying bills, rates, insurance and other expenses that are required to be paid by the principal;
• filing tax returns;
• withdrawing and depositing money; and
• making investment decisions including buying and selling property for the principal.

Healthcare matters relate to what medical and dental care the principal receives.

Personal care matters include things like:

• deciding where the principal lives;
• deciding what the principal eats; and
• organising support for the principal with day to day care (e.g. bathing, cooking, cleaning).

Medical research matters include things like deciding whether the principal can receive an experimental drug or treatment for an illness.

The person you chose would be someone you trust and have confidence with. This means they must:

• Act honestly, carefully and in your best interests
• Exercise reasonable care when making decisions. This may mean the need to seek professional advice from a lawyer, accountant, doctor or other professional.
• Avoid acting where interests may be conflicted (unless the Power of Attorney specifically authorises them to act in a conflict).
• Only use the your money for the your benefit, not for their own benefit, unless otherwise specified in the Power of Attorney.
• Keep accurate records and accounts of all of the dealings with your money.
• Keep your money separate from their own money.

This also means they must not:

• Take money from you or use your credit card without consent.
• Put your money into their own account.
• Pay for the financial needs of anyone else using the your money, unless the Power of Attorney specifically authorises them to do so.
• Pay themselves for acting as attorney, unless the Power of Attorney specifically authorises them to be paid.
• Disclose confidential information (unless authorised by the Power of Attorney or by law).
• Access what they believe to be your inheritance prior to the your death.

As an attorney you are in a relationship of trust and confidence with the person who appointed you (also known as the principal). This means you must:

• Act honestly, carefully and in their best interests
• Exercise reasonable care when making decisions. This may mean you need to seek professional advice from a lawyer, accountant, doctor or other professional.
• Avoid acting where your interests conflict with them (unless the Power of Attorney specifically authorises you to act in a conflict).
• Only use their money for the their benefit, not for your own benefit, unless otherwise specified in the Power of Attorney.
• Keep accurate records and accounts of all of your dealings with their money.
• Keep their money separate from your own money.

This also means you must not:

• Take money from them or use the their credit card without consent.
• Put their money into your own account.
• Pay for the financial needs of anyone else using their money, unless the Power of Attorney specifically authorises you to do so.
• Pay yourself for acting as attorney, unless the Power of Attorney specifically authorises you to be paid.
• Disclose confidential information (unless authorised by the Power of Attorney or by law).
• Access what you believe to be your inheritance prior to their death.

There can be very serious consequences if you fail to comply with your obligations as an attorney. For example, you might be subject to criminal or civil proceedings and required to compensate your principal for any loss they suffer.

If you are unsure about your obligations as an attorney or the effect of an Power of Attorney, we recommend you get your own legal advice about the document.

The Power of Attorney document will contain details of the types of decisions that the person who appointed you (also know as the principal) is allowing you to assist them with.

There are four categories of decisions for which a principal can appoint you to make decisions and take actions in relation to: property and financial; healthcare; personal care; and medical research.

Property and financial matters include things like:

• paying bills, rates, insurance and other expenses that are required to be paid by the principal;
• filing tax returns;
• withdrawing and depositing money; and
• making investment decisions including buying and selling property for the principal.

Healthcare matters relate to what medical and dental care the principal receives.

Personal care matters include things like:

• deciding where the principal lives;
• deciding what the principal eats; and
• organising support for the principal with day to day care (e.g. bathing, cooking, cleaning).

Medical research matters include things like deciding whether the principal can receive an experimental drug or treatment for an illness.

You can only start making decisions for the person who appointed you (also know as the principal) if they have “impaired decision-making capacity”. This means that when they cannot make a specific personal or healthcare decision themselves (for example because they are in a coma), you must decide. Sometimes a they can still make some types of decisions, but there may be others that you must decide.

For property and financial matters, the Power of Attorney will specify when your ability to make decisions begins. It will either commence when they have impaired decision-making capacity or immediately (once you sign the document). If it commences immediately then you must only do things that they have asked you to do unless they have impaired decision-making capacity. If the they later lose decision-making capacity then you are able to make decisions for them in relation to property and financial matters.

The person who appointed you (also know as the principal) has a right to take part in decisions affecting their life to the greatest extent reasonably possible. This means that you must support them to make a decision, rather than making it for them.

If you are uncertain about whether they can make a particular decision, you should consult the  treating doctors or a specialist to obtain their view.

If you are required to make a decision, you must try to make the decision that they would have made in the circumstances. Accordingly, when making the decision you should consider:

• Any wishes or directions given to you in the Power of Attorney document.
• Any directions given to you in an Advance Health Care Directive (or other similar document).
• Any wishes that they have previously discussed with you.
• What is in the best interests of the person

If more than one person is appointed as an attorney for the principal the Power of Attorney will specify how decisions must be made by the attorneys. For example, this may be together or separately or that different attorneys may make decisions for different areas.

Your role as an attorney ends if the Power of Attorney is revoked (or cancelled) by the principal (as long as the principal maintains decision-making capacity). A principal who revokes a Power of Attorney must take all reasonable steps to tell all attorneys affected by the revocation.

A Power of Attorney can also be fully or partially revoked by changes in an attorney’s circumstances, or those of your principal. This can include making a new Power of Attorney, losing capacity, marriage, separation or divorce, bankruptcy, or death. The Power of Attorney can also cease to have effect according to its terms.

It is recommended you seek legal advice if you are an attorney who believes their appointment may have been revoked, or if any of the above changes in circumstances have occurred.