Enduring Power of Attorney:

Your finances and property are important to you and you should protect them with an enduring power of attorney in case something unfortunate happens to you and you can’t control them anymore or you are out of the Country on a holiday.

What is it?
An enduring power of attorney is an important legal document you can prepare to give someone else the power to make personal or financial decisions on your behalf.  A power of attorney is the legal power to make decisions on someone else’s behalf.  "Enduring" simply means that the power continues even if the person giving it loses the capacity to make decisions.

An Enduring Power of Attorney (EPA) is a legal agreement that enables you to appoint a trusted person, or people, to make decisions about persona/health matters and financial matters.

Some examples of personal/health matters are decisions about where and with whom you live, whether you work or undertake education or training, whether you apply for a licence or permit, day-to-day issues like diet and dress, and whether to consent, refuse to consent or withdraw consent to particular types of health care for you (such as an operation).  An example of a financial matter is deciding how your income should be invested.

There are a number of situations that you cannot give your attorney power to make decisions about including:

• special personal matters such as a decision about your will, appointing someone as your attorney, voting at elections, or consenting to adoption or marriage;

• special health matters, such as donation of body tissue, sterilisation, pregnancy termination, research or experimental health care, or certain psychiatric or other health care as specified in the regulations.

Your attorney can consent to the withdrawing or withholding of life-sustaining medical treatment if, for instance, you become terminally ill or go into a state of permanent or persistent unconsciousness. 

You should consider whether you want to make an Advance Health Directive to be able to set out how you want you health matters to be dealt with. This document will override any decision of your enduring power of attorney.

It is a voluntary agreement, that anyone over the age of 18 with full ‘legal capacity’ can make.  ‘Legal capacity’ is where a person is able to use reasonable judgement and understand the nature and effect of the document they are completing and the nature and extent of their estate.  If there is any doubt about the persons ‘legal capacity’ a doctor can make a decision about this.

You can appoint the same attorney for both personal and financial decisions, or you can appoint different people for each power of attorney.

How it is managed?
The rules relating to an Enduring Power of Attorney’s are found in the Powers of Attorney Act 1998 andin Part 9 of the Guardianship and Administration Act 1990 (Cth).  An Enduring Power of Attorney can take effect in a number of situations including; immediately upon signing it, where the person loses their ‘legal capacity’ or at another appointed time such as when you are out of the country.

An enduring power of attorney is only valid in the state that you make it in, so you need to make sure that it is created properly.0

Many people do not realise that there are a number of situations where your Enduring Power of Attorney will automatically end including;
• If you get married.  If you marry, the power of attorney is revoked unless your new spouse is already your attorney.  (If your new spouse is your attorney, the only power that is revoked is the power of any other attorney you may have.)

• If you get divorced.  If you divorce, the power of attorney is revoked to the extent that it was given to your former spouse.

• If you die.  If you die, the enduring power of attorney is revoked in its entirety.

• If you make an inconsistent document.  This power is revoked to the extent of any inconsistency with any later document you complete, such as an Advance Health Directive or another enduring power of attorney.

• If your attorney withdraws.  Your attorney may withdraw by giving you a signed notice or by getting the Court's leave to withdraw.

• If your attorney becomes your paid carer or health-care provider.  If this happens, your attorney's power is revoked.

• If your attorney becomes incapable.  Your attorney's power is revoked if he/she becomes incapable of understanding the nature and foreseeing the effects of a decision, and of communicating that decision.

• If your attorney becomes bankrupt or insolvent.

• If your attorney dies.

Why you need it?
It can be a stressful time in people’s lives if something happens to your mental health are there is confusion about how you wanted your property and finances managed.  If you are involved in an accident or you develop an illness that affects your decision making abilities it may cause tension or problems amongst your loved ones to decide how to manage your property and finances.  By creating an Enduring Power of Attorney you can clearly set out how your property and finances are to be dealt with.

An Enduring Power of Attorney is more useful than an ordinary Power of Attorney as it will continue to operate even if you lose full ‘legal capacity’.  It is a legal document that if completed correctly can be enforced to reduce tension or troubles if multiple people are trying to control your property or finances.

If your attorney will be making decisions about buying or selling land, this document must be registered with the Land Titles Office. or selling land.  If you register the document, you must take the original to the Land Titles Office and pay the fee.  If the power is revoked, you must deregister the document by lodging a revocation form in the Land Titles Office.

How can you make an Enduring Power of Attorney?
You should come into our office and we can help you complete your Enduring Power of Attorney.  We are very knowledgeable in this area because we deal with property and finances every day. 

It is also important to consider whether your Will and other estate planning measures are up-to-date.