What is an enduring power of attorney?
An enduring power of attorney is a legal document in which you appoint another person to make property and financial decisions for you.
An enduring power of attorney must be made while you have mental capacity. If you lose mental capacity, an enduring power of attorney cannot be signed. The time for making an enduring power of attorney is when you are healthy, aware and still have the capacity to manage your own legal and financial affairs.
An enduring power of attorney authorises your attorney to make these decisions for you if you are no longer able to make them for yourself. It will come into effect if you lose that ability. This could be due to an accident, illness or disability, such as dementia. An enduring power of attorney continues to be valid through mental incapacity but is only valid during your lifetime.
What is a ‘donor’ and ‘attorney’?
An enduring power of attorney will often refer to a ‘donor’ and an ‘attorney’. A donor is the person who makes the enduring power of attorney (you) and the attorney is the person (or persons, if more than one) who is being given the power to make decisions on your behalf.
What does mental capacity mean?
The law requires that we have mental capacity when making certain decisions during our life, in order for them to be valid. This can be confirmed by a doctor or the person can be referred to a doctor if there is a dispute about that person’s mental capacity.
Having mental capacity means that we can:
- understand information given to us; and
- weigh up the information available to make a decision; and
- remember that information long enough to be able to make a decision; and
- Communicate the decision to other people.
Can my attorney make medical decisions for me?
No. An enduring power of attorney only gives the attorney power to make property and financial decisions for you. See our Enduring guardianship fact sheet for information regarding medical and lifestyle decisions.
Appointing an attorney
Your attorney will be able to do anything you can lawfully do with your assets and finances, including operating your bank account and selling your house or other assets, so it’s important to choose this person carefully. Your attorney should be trustworthy, honest and act in your best interests at all times.
Your attorney must exercise their power responsibly. They must keep accurate records and accounts of all their dealings and transactions made on your behalf.
You can appoint one person to be your attorney, or two people. It is a good idea to appoint more than one person in case that person can’t carry out their duties for some reason, such as their own illness or incapacity, or if they’re travelling overseas.
If more than one attorney is appointed, you will be required to nominate whether the attorneys are acting ‘jointly’ or ‘jointly and severally’. Jointly means that both attorneys must act together and agree with every decision that is made. ‘Jointly and severally’ means that either attorney can make decisions by themselves, independently of each other. When you have made your decision you need to cross out either jointly OR jointly and severally on the form to indicate your decision.
The form must then be witnessed by two people who are not a close relative to either the donor or the attorney(s). They must witness both signatures at the same time.
Power of attorney forms are located on the Department of Primary Industry, Parks Water and Environment (DPIPWE) website.
Can I limit the power given to my attorney?
Yes. You can specify which powers you wish to give your attorney or you can give your attorney unlimited power. There are a range of options available: a one off power [Form 1]; a short period such as an overseas holiday [Form 2] or unlimited power [Form 4]. This is the most commonly used. If you wish to specify what powers your attorney(s) has complete [Form 3].
Is my enduring power of attorney legally valid once I have signed it?
To be legally valid and enforceable, an enduring power of attorney must be registered, using Form 5. This is included with the other power of attorney forms. An enduring power of attorney is registered by lodging the form at the Lands and Titles Office and paying a fee.
- Powers of Attorney Act 2000