This is a legal document that lets a person appoint someone else to make decisions for them while they are alive.
The powers ‘endure’ which means they continue unless revoked, until the death of the person who made the appointment, whether they are capable or incapable of making decisions about matters.
Being able to appoint substitute decision makers helps individuals plan for:
The person who makes the appointment is known as the principal. The principal must be 18 years of age or older and have decision making capacity to make the enduring power of attorney. No one else can make a power of attorney on behalf of another person.
The person, or people, the principal appoints are known as the attorney(s).
A person has decision making capacity if they are able to:
The principal decides the types of decisions their attorney(s) can make. These can be decisions about:
Or the principal can limit the attorney(s)’ power to making decisions about specific financial and personal matters.
The principal can place conditions on the attorney(s)’ powers. The principal can also give instructions to the attorney(s) about how they want them to use the powers.
An attorney does not have power to do the following things on behalf of the principal:
Things an attorney can’t do unless the principal has authorised this:
At times, there may be a conflict between the duty of the attorney to the principal and the interests of the attorney (or the attorney’s relative, business associate or close friend). This is known as a conflict transaction.
The principal can authorise a conflict transaction, but legal advice should be obtained before authorising their attorney to enter into conflict transactions.
There are some transactions that the Powers of Attorney Act 2014 says an attorney can enter into even though there may be a conflict between the duty of the attorney to the principal and the interests of the attorney. An attorney for financial matters may:
The most important decision when making an enduring power of attorney is choosing who to appoint. With enduring powers, whoever is appointed will have the authority to make decisions for the principal after the principal no longer has decision making capacity to change or cancel the appointment. Many people choose their life partner or an adult child. Others prefer to appoint another family member, a friend with expertise in the area, an accountant, a lawyer, or a trustee company.
The principal should feel confident that the person or agency has the ability and is willing to take on the role. The person (or people) that the principal appoints needs to be eligible to be appointed as an attorney and agree to be an attorney.
A person is eligible to be an attorney if the person is:
A person who is an undischarged bankrupt is an example of a person who is ‘insolvent under administration’.
A person who has been convicted or found guilty of an offence involving dishonesty (that is punishable by imprisonment of three months or more) is only eligible to be appointed as an attorney for financial matters if they have disclosed the conviction or finding of guilt to the principal. That the person has disclosed the conviction or finding of guilt needs to be recorded in the enduring power of attorney.
The principal can appoint a trustee company as an attorney for financial matters only. A trustee company is not eligible to be an attorney for financial matters if a proceeding has commenced against the company to wind it up.
If the principal appoints more than one attorney for all or any matters the principal may appoint the attorneys to act:
If the principal does not specify how the attorneys are appointed, the attorneys act jointly. When deciding how attorneys are to act, consideration should be given to ensuring this is a workable arrangement.
The principal can appoint an alternative attorney for any attorney they have appointed. When an alternative attorney acts the principal can specify the circumstances in which an alternative attorney is authorised to act. If the principal does not specify any circumstances, an alternative attorney is authorised to act if the attorney for whom they are appointed dies, does not have decision making capacity for the matters they were appointed to make decisions about, is otherwise not willing or able to act, or is no longer eligible to be an attorney.
The principal can nominate in the appointment form when the attorney(s) powers start. This can be:
The principal can specify that the power start at different times for financial and personal matters. Or the principal can specify that the power start at a different time for a specified matter. If the principal does not specify when the power starts, it begins immediately for all matters.
If the power starts when the principal ceases to have decision making capacity for the matter(s)
The principal can specify in the enduring power of attorney people or organisations that the attorney should notify before commencing to exercise power for the first time because the principal does not have decision making capacity for that matter.
If the power starts immediately
If the power starts immediately (while the principal still has decision making capacity for the matters) the principal oversees the use of the attorney’s power and the attorney acts at the direction of the principal.