An Enduring Power of Attorney is a legal document authorising someone to act on your behalf.
ESTATE PLANNING

Enduring Power of Attorney: What you should know

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  • Mel Buttigieg
  • Writer, Bare
  • December 8, 2020
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An Enduring Power of Attorney (EPOA) is a legal document allowing you to nominate a person/s to act on your behalf. You may wish to authorise someone to make decisions on your behalf relating to legal, financial and personal matters.

This article explains the most common questions about an Enduring Power of Attorney. If you’d like help making an EPOA, or if have further questions about estate planning, you can make an appointment with our estate planning experts here or call (03) 9917 3388.

What is an Enduring Power of Attorney

An Enduring Power of Attorney is an authorisation that allows someone to sign legal documents on another person’s behalf. 

It can be useful to have an EPOA if you become unwell or lose the ability to make decisions or manage your financial affairs yourself. 

What decisions can be made under an EPOA?

An Enduring Power of Attorney allows financial, legal and personal decisions can be made on another person’s behalf. Most commonly, an EPOA is used to pay bills; sign documents; manage, sell or buy property; or make decisions about where the person might live. 

Can I make an EPOA any time?

Anyone aged 18 years or over can make an Enduring Power of Attorney at any time as long as they have ‘full legal capacity’ to do so. In other words, they must know and understand what’s involved with appointing an attorney and the implications of their decision.

If a person does not have capacity to appoint an EPOA, their state tribunal – for example the Victorian Civil and Administrative Tribunal (VCAT) – will make an order appointing a guardian on their behalf.

 

An Enduring Power of Attorney document must be signed by two witnesses.
An Enduring Power of Attorney document must be signed by two witnesses.

What should I consider when appointing an attorney?

When appointing an Enduring Power of Attorney, there are a few things you will need to consider.

You can specify when and how your attorney can act for certain decisions – be as specific as you want. Consider when you want them to start managing your affairs: will it be before you lose mental capacity, or after? And will it be only for some decisions, or all of them?

Who should I appoint as my EPOA?

The most important thing you will need to consider is who will be the most appropriate person to make decisions on your behalf.

Your designated attorney can be an adult family member or friend, or someone else that you trust. You can appoint one or two attorneys to act jointly or severally – and a back-up or alternative attorney, if your first choice is unable or unwilling to act.

When will the EPOA start?

When appointing an EPOA, you will also need to consider at what point the attorney can begin making decisions on your behalf: Will they come into effect immediately? Or in the event you lose capacity?

Do I lose the ability to make my own decisions?

Appointing an attorney does not mean that you will lose control over your finances – it simply allows someone else to manage your finances according to your instructions. Your Enduring Power of Attorney can be cancelled (revoked) at any time provided you have the capacity to do so.

Is an EPOA called something else?

All states will deal with legal and financial matters or decision-making under an Enduring Power of Attorney. However, personal and medical decisions will be dealt with differently depending on which state you reside in.

  • In Victoria, legal, financial and personal decisions are made under an EPOA. However, medical decisions come under Appointment of Medical Decision Maker (AMDM). Read our Melbourne estate planning guide for more information on other estate planning matters. 
  • In NSW, personal and medical decisions are made under the appointment of an Enduring Guardian. Read our Sydney estate planning guide for more information on other estate planning matters. 
  • In Queensland, all decisions (legal, financial, personal and medical) are made under an EPOA. Read our Brisbane estate planning guide for more information on other estate planning matters. 
  • In South Australia, legal and financial decisions are made under an EPOA. However, personal and medical decisions are made under an Advance Care Directive.
  • In Tasmania, legal and financial decisions are made under an EPOA. However, personal and medical decisions are made under an Enduring Guardianship.
  • In the ACT, all decisions (legal, financial, personal and medical) are made under an EPOA.
  • In Western Australia, legal and financial decisions are made under an EPOA. However, personal and medical decisions are made under an Enduring Power of Guardianship.

 

Here's which estate planning document is required for each state.
Here’s which estate planning document is required for each state.

Who needs to sign an Enduring Power of Attorney document?

Before it can become a legally binding document, the Enduring Power of Attorney document must be signed by two witnesses. One must be an independent authorised witness, such as a Justice of the Peace, lawyer, doctor, nurse, pharmacist, teacher or public servant. The second witness can be anyone aged 18 years or over.

It’s important to note that a witness for the EPOA document cannot be a relative, your carer or the person being appointed as your attorney. 

Do I need to register my Enduring Power of Attorney?

In Victoria, there is no need to register an Enduring Power of Attorney. However, in some states, an EPOA will need to be registered under some circumstances. For example, if there are any property transactions in progress, an EPOA will often need to be registered with the Land Titles Office in that state. 

Regardless of registration, the common approach is to make your Next of Kin and family aware that the attorney has been appointed and store the signed document in a safe place. If you are storing the document with your Will, be sure not to staple it or attach it to the Will document in any way, otherwise it can invalidate your Will.

 

This article is not legal advice. You should chat with a legal professional for specific advice on your personal or financial situation.

At Bare Cremation, we have a team of estate planning experts on hand to help you make an Enduring Power of Attorney document. Our team of Wills and Estates lawyers and estate planning experts are here to support you in creating or updating your Will, getting your estate plan in place, or simply answering any questions you have about a complicated topic. 

Whether you just need a free Will or an entire estate planning kit, we have a package that suits your needs. Visit the Bare Law website, or chat with our estate planning team on (03) 9917 3388. You can also pre-pay your funeral, by calling 1800 202 901 or visiting bare.com.au.

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