Enduring power of attorney

What is an enduring power of attorney?

An enduring power of attorney lets you appoint a person, called your attorney, to make financial and legal decisions on your behalf. That covers things like operating your bank accounts, paying your bills, managing your investments, and selling property if it is needed.

You choose who holds this role, and you can set limits on what they can and cannot do. Your attorney must always act in your best interests and keep their money separate from yours.

The person you choose does not have to be a relative. That matters most for people whose closest relationships sit outside their legal family, which is covered in when the people closest to you are not your legal family.

How is it different from an ordinary power of attorney?

This is the distinction that matters most, and it is the one most people get wrong. A general or ordinary power of attorney ends the moment you lose the capacity to make your own decisions. An enduring power of attorney is the opposite: it keeps working precisely when you can no longer manage things yourself.

For someone living with a serious illness, the enduring form is the one that counts. An ordinary power of attorney offers no protection at the point you are most likely to need it.

Why does it need to be done early?

An enduring power of attorney can only be made while you still have legal capacity, which broadly means you understand what the document does and what you are agreeing to. Once that capacity is lost, it is too late to make one.

If no enduring power of attorney is in place when it is needed, your family cannot simply step in. They may have to apply to the relevant state tribunal to be appointed as a financial administrator. That process takes time, costs money, and adds stress at an already hard moment. Putting the document in place early avoids all of it.

Does it cover medical decisions too?

Usually not. In most states an enduring power of attorney covers financial and legal matters, and decisions about medical treatment and personal care are made under a separate document, called an enduring guardianship or a medical treatment decision maker appointment depending on your state. In South Australia that person is appointed inside an advance care directive. In Queensland and the ACT the same enduring power of attorney can also cover personal and health matters if it says so. In the Northern Territory, appointments made since 2014 for both are made in an advance personal plan. The same person can hold both roles. It is worth putting both in place at the same time.

Does it work differently in each state?

Yes. Enduring powers of attorney are governed by state and territory legislation, so the form, the witnessing requirements, and the exact name differ depending on where you live.

If you live in one state but own property in another, or you move interstate, ask your solicitor whether your document is valid across both. In some cases you may need a separate document for each state.

How do I set one up?

In most states an enduring power of attorney must be signed in front of an authorised witness while you have capacity. Who counts as a witness differs: a justice of the peace can witness one in some states but not in New South Wales, where it is usually a lawyer. A solicitor who works in estate planning will prepare the correct document for your state and make sure it is witnessed properly. The cost is usually modest, and community legal centres can help people on limited incomes.

The Public Trustee or public guardian in your state or territory can also help, or tell you where to go.

If you are the person they appoint

Carers are often the one named as attorney. Before you agree, it helps to know what the role asks.

You usually sign the document too, to accept the role. The solicitor will tell you how that works in your state.

The power does not take their decisions away. While they can still decide, they decide. Some documents let you act straight away, with their bank for example. Others only start once they lose capacity. The document says which.

Act for them, not for yourself. Keep their money apart from yours, and write down what you pay and why, because the bank, a tribunal or their executor may ask.

It all ends when they die. From then on, the executor named in their will deals with their money, even if that is also you.

This is general information only. For your situation, speak with a solicitor admitted in your state.