Enduring Power of Attorney: What is it and do I require one?*
What is an Enduring Power of Attorney?
There are two types of Power of Attorney – the Enduring Power of Attorney and the General Power of Attorney.
An Enduring Power of Attorney allows health, personal and/or financial affairs to be dealt with in the way you wish, even (and particularly) if you lose the capacity to make decisions for yourself. For example, if you suffer a head injury, develop dementia etc.
What decisions can my Attorney(s) make?
Giving someone an Enduring Power of Attorney means that your Attorney will have the power to make decisions in your interests and sign all necessary legal documents. The power begins:
- for personal/health matters - only when 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 on a particular occasion, such as your incapacity.
Your Attorney can make decisions such as deciding where and with whom you live, or day to day issues including diet and dress, or those relating to basic health care. However, your Attorney can not make decisions relating to special health matters and special personal matters on your behalf, such as making a Will, or making or revoking a Power of Attorney.
Your Attorney can only act in your best interests and must act with honesty and care and it is an offence not to do so. In relation to your health care, your Attorney must ensure that any decisions made for you contribute to your health and well being and must take into account the advice of your doctor/health care provider
What happens if I don’t have an Enduring Power of Attorney?
If you were to temporarily or permanently lose capacity to make decisions and did not have an Enduring Power of Attorney, the Public Trustee would step in to make financial decisions for you (for a fee) and health matters would be decided by your statutory health Attorney (could be your spouse, a relative or a close friend). Alternatively, your family would need to make an application to the Guardianship & Administrative Tribunal regarding the management of your affairs.
How do I complete an Enduring Power of Attorney?
Your Solicitor can offer practical legal advice regarding these documents, and prepare them on your behalf. At Briese Lawyers, we frequently prepare Enduring Powers of Attorney for our clients.
*This article is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own.