What and why of who should have the power

An enduring power of attorney is a legal agreement giving someone else the power to make personal/health and/or financial decisions on your behalf.

“Enduring” simply means that the power continues even if you lose the capacity to make the decisions yourself. You are considered to have lost capacity to make a decision if you cannot understand the nature and effect of a decision, or if you are unable to communicate a decision in some way.

Why give someone the power?

If you are unable to make decisions for yourself, for example due to illness or being overseas, giving someone an enduring power of attorney means that your wishes will be carried out.  Your attorney will have the power to make decisions in your best interests and to sign any necessary documents on your behalf.

What happens if I don’t have an enduring power of attorney?

Someone would have to make an application to the Guardianship and Administration Tribunal to be able to manage your affairs. The Public Trustee may be required to step in to make financial decisions for you.  Health matters would be decided by your “statutory health attorney”. This could be your spouse, a carer, a close friend, or other relative.

What types of decisions would my attorney make?

For personal care matters, your attorney decides issues such as where you will live and your day-to-day circumstances.

For health care, all issues up to and including withholding or withdrawing life sustaining treatment, taking into account your wishes and actions that contribute to your health and wellbeing.

For financial matters, your attorney would look after your banking, pay your bills, and make investment decisions.

They cannot give away your assets or join your assets to theirs unless they were already jointly owned.
Your attorney does not have the power to make decisions about “special” personal matters, defined as making your will, voting, or appointing another attorney, or “special” health matters such as experimental treatments or donating organs.

Who should I choose as my attorney?

Choose someone you trust. Most people choose their spouse or a close relative or friend.

You can appoint one person for personal/health matters and another for financial matters.

You can also appoint joint attorneys  to act together or individually, you decide.  

Your attorney must be over 18 and must not be your paid carer, that is, it can’t be someone paid to care for you, such as a nurse or a doctor, and not just someone receiving a carer’s benefit.

When does the power begin?

For personal/health matters, your attorney’s power will only begin if you are incapable of making decisions yourself.  

For financial matters you can specify whether the power is to begin immediately, on a particular date, or even on a particular occasion.

You can cancel the power at any time, as long as you are capable of understanding what you are doing.
If you change or revoke the power, you must inform your attorney.

Dr John de Groot is Special Counsel at de Groots wills and estate lawyers.  Visit degroots.com.au