An enduring power of attorney allows you to appoint someone you trust to make certain decisions for you.
The appointment can cover financial matters, personal matters or both. Importantly, the authority can continue if you later lose the ability to make the relevant decision yourself.
An enduring power of attorney is therefore not only for older people or people who are unwell. It is a planning document that any Victorian adult may consider as part of their broader personal and financial arrangements.
McDonald Legal’s estate planning services can assist with preparing powers of attorney alongside wills and other planning documents.
Quick overview
An enduring power of attorney can allow an appointed person to make decisions about:
- banking and payment of expenses
- managing property
- dealing with investments
- legal or financial transactions
- where you live
- services or personal support you receive
It does not give the attorney authority to make medical treatment decisions. In Victoria, that requires a separate appointment of a medical treatment decision maker.
You must be at least 18 and have decision-making capacity when making the appointment.
What does “enduring” mean?
The word “enduring” means the authority can continue even if you later lose decision-making capacity for the relevant matter.
For example, a serious illness, injury, stroke or cognitive condition may affect a person’s ability to understand, weigh or communicate a financial or personal decision.
An ordinary or general non-enduring power of attorney does not continue if the person permanently loses decision-making capacity. It is generally used for a limited financial purpose or period, such as authorising someone to manage particular affairs while the person is overseas.
An enduring power of attorney is designed for longer-term planning.
What decisions can an attorney make?
You decide which powers to give your attorney.
Financial matters
Financial authority may include decisions about:
- paying bills and regular expenses
- operating bank accounts
- managing investments
- buying or selling property
- dealing with debts
- managing business or taxation matters
- entering financial or legal transactions
The document can give broad financial authority or limit the attorney to particular matters.
Personal matters
Personal authority may include decisions about:
- where you live
- which services you receive
- personal care arrangements
- access to education or support services
- some aspects of your daily life
Personal matters do not include medical treatment decisions.
You can include instructions or conditions explaining how the authority should be used. Careful drafting can help make the scope of the appointment clearer.
When does the attorney’s authority begin?
You can choose when the authority begins.
It may begin:
- immediately
- on a specified date
- when a particular event occurs
- when you no longer have decision-making capacity for the relevant matter
Different starting arrangements can apply to different powers.
For example, you may allow an attorney to assist with financial matters immediately but authorise personal decisions only if you later lose capacity for those decisions.
Starting financial authority immediately does not prevent you from continuing to make your own decisions while you have capacity. It does, however, give the attorney legal authority to act, so the implications should be considered carefully.
Who should you appoint?
Choosing the attorney is often the most important part of the process.
The person should be:
- trustworthy
- willing to accept the responsibility
- capable of managing the relevant matters
- available when decisions may be needed
- able to understand and respect your wishes
- unlikely to place their interests ahead of yours
An attorney is given substantial authority. The role should not be offered simply because someone is the eldest child, closest relative or most convenient choice.
You may appoint more than one attorney and specify whether they act together, independently or by majority. You may also appoint an alternative attorney in case the first person cannot act.
Discuss the appointment with the proposed attorney before completing the document. They should understand the authority being offered and the responsibilities involved.
When should you consider making one?
An enduring power of attorney should be made while you have decision-making capacity. Another person cannot create one for you after capacity has been lost.
It may be appropriate to consider the document:
- when preparing or reviewing your will
- after buying property or establishing a business
- when entering a serious relationship or marriage
- after separation or divorce
- when family relationships change
- following a significant health diagnosis
- as responsibilities and assets become more complex
- when an existing attorney is no longer suitable
- when you want greater certainty about future decision-making
You do not need to wait until illness or loss of capacity appears likely. Unexpected events can affect people at any age.
If no enduring appointment exists and a decision later needs to be made for someone who lacks capacity, the Victorian Civil and Administrative Tribunal may need to appoint a guardian or administrator. The appointed person may not be the person the individual would have chosen.
Medical decisions require a separate document
An enduring attorney cannot make medical treatment decisions unless that person has also been appointed separately as your medical treatment decision maker.
The Office of the Public Advocate explains the distinction in its guidance on making an enduring power of attorney.
You may also consider an advance care directive, which can record values, preferences and certain instructions concerning future medical treatment.
These documents perform different roles. They should be reviewed together so there are no gaps or misunderstandings about who can make particular decisions.
What is required to make the appointment?
The person making the enduring power of attorney must:
- be at least 18
- have decision-making capacity to make the appointment
- understand the nature and effect of the document
- act freely and voluntarily
- use the required form
- sign in front of the required witnesses
Two adult witnesses are required. At least one must be authorised to witness affidavits or be a registered medical practitioner.
The attorney must also formally accept the appointment before exercising the authority.
Because the document can provide significant control over personal and financial affairs, professional advice can help ensure that the right powers, conditions and safeguards are included.
Review the document when circumstances change
An enduring power of attorney should be reviewed periodically and after major personal or financial changes.
A review may be needed if:
- the attorney dies or becomes unable to act
- your relationship with the attorney changes
- the attorney moves away or becomes unavailable
- your assets or business interests change
- your health or support needs change
- the document no longer reflects your preferences
- you move to another state or country
You can revoke an enduring power of attorney while you have the decision-making capacity to do so. Making a later enduring power of attorney may also revoke an earlier appointment unless the new document states otherwise.
Do not make handwritten amendments to the signed document. Obtain advice about preparing a replacement or formal revocation.
Speak with McDonald Legal
An enduring power of attorney gives another person significant legal authority. The document should clearly identify who can act, which decisions they can make and when their authority begins.
McDonald Legal provides advice on powers of attorney and estate planning for Melbourne clients who want to prepare new documents or review existing arrangements.
To arrange a consultation, contact McDonald Legal or call (03) 9070 1107.
This article provides general information and is not legal advice. The appropriate appointments and safeguards depend on your personal, family and financial circumstances.
