Enduring power of attorney

Overview

An enduring power of attorney is a legal document that you make to give another person the authority to make financial decisions on your behalf.

The document:

• is written when you are capable of making your own decisions
• states when the person will have authority
• can start at either of these times:
  • immediately and continue if you lose capacity
  • when you lose capacity

An enduring power of attorney is defined by the Powers of Attorney Act.

If you lose your capacity and do not have an enduring power of attorney

One of your family members or friends might have to go to court to become your trustee. This takes time and money.

If you have this legal document in place, you do not need a trustee.

Get an enduring power of attorney

There are no regulated forms for creating an enduring power of attorney.

It is safest to make an enduring power of attorney with a lawyer to make sure:

• you have protected all your financial interests
• your enduring power of attorney is legal

The OPGT cannot assess capacity or provide legal advice.

Enacting an enduring power of attorney

Each power of attorney document is different. Read the details in the document to determine how it will come into effect.

An enduring power of attorney can come into effect:

• as soon as it is signed
• on a specific date
• when a specific event occurs

Written declaration

If the specific event is ‘when you lose capacity,’ the power of attorney document should state who must make a written declaration that this event has occurred.

If the document does not say who makes this declaration, 2 medical practitioners must make a written declaration.

Ending an enduring power of attorney

Each power of attorney document is different. Read the instructions in the document to determine if it provides criteria for when the enduring power of attorney ends.

An enduring power of attorney lasts until one of these things happens:

• you die
• you revoke it – if you have capacity to revoke it
• the court cancels it
• a trusteeship order is granted
• your attorney dies or loses capacity and there is no alternate attorney to take over

Complaints about an attorney

The Power of Attorney Act allows a concerned person to force the attorney – who is acting under an enduring power of attorney – to provide a copy of the relevant financial records to the court to review.

Contact a lawyer for assistance with this process.