Enduring power of attorney
What is an enduring power of attorney?
An enduring power of attorney refers to a legal document that allows you to appoint someone to make decisions about your personal or financial matters. This power comes into effect when and if you are unable to make decisions, such as in the case of illness. A power of attorney should only be made with an individual that you can trust who understands what is important to you and is able to act on your wishes.
Who can make a power of attorney?
To be eligible to create a power of attorney you must be over the age of 18 and must have the decision-making capacity to do so. A person is presumed to possess the decision-making capacity unless there is contradictory evidence.
What is decision-making capacity?
A person is considered to have decision making capacity to create an enduring power of attorney if they are able to:
Comprehend the information relevant to making a decision about the power of attorney, as well as the effect of that decision
Retain the information necessary to make the decision
Use that information in the process of making the decision, and
Communicate their decision, their view and their needs in some way (verbal, gestures or other means)
Understanding the effect of the decision that power of attorney makes requires the individual to understand:
That they are entitled to place restrictions on the power given to the individual (the attorney) and give instructions about exercising power
When the power of attorney begins
When power of attorney becomes exercisable, the attorney has the same powers that the individual, or principal, had when they possessed decision making capacity, and may do anything in which power is given
The individual may revoke the enduring power of attorney at any time while they still possess decision-making capacity
The power of attorney continues even when the individual loses their decision-making capacity
Once the decision-making capacity has been lost, the principal is unable to oversee the use of power
No one can make a power of attorney on behalf of another person. Your attorney cannot make medical decisions on behalf of you unless appointed as your medical treatment decision maker or enduring guardianship.
What is a medical treatment decision maker and enduring guardian?
Medical treatment decision makers and enduring guardians are usually those who have a close and continuing relationship with the patient. If no decision maker has been officially appointed, the power will go to the first person listed below that is applicable:
Patient’s spouse or domestic partner
The patient’s primary carer (cannot be a paid service provider)
An adult child of the patient
A parent of the patient
An adult sibling of the patient
If you have chosen to officially appoint a medical treatment decision maker or enduring guardian it must first be determined that you have the decision-making capacity to do so. You must then choose the individual you would like to appoint. This individual should be someone you trust to respect your values and wishes. More than one person may be appointed, however only one individual will have power at one time. An appointment form must then be filled out. The form must be signed in front of two witnesses; one registered medical practitioner, and one person that is authorised to witness affidavits.
The duty of the medical treatment decision maker and enduring guardian will end if:
You revoke the appointment
The relevant state body (e.g. the Victorian Civil and Administrative Tribunal for Victoria) revokes the appointment
You die
A person may choose to resign as a medical treatment decision maker, and must inform the person that appointed them, as well as any other appointed medical treatment decision maker appointed at the same time. The resignation must be in writing and must state the intention to resign, must be signed and dated, and witnessed by an adult witness.
How do you create an enduring power of attorney?
Victoria
You must ensure that you are eligible to create an enduring power of attorney (must be over the age of 18), and that you understand the nature and effect of creating a power of attorney
You must then complete the power of attorney form. While this can be completed alone, as it is a complex legal document it is recommended that you consult legal advice.
https://www.publicadvocate.vic.gov.au/power-of-attorney/enduring-power-of-attorney
Your completed document does not need to be registered in Victoria. Once completed, you should keep the original copy in a safe place, and keep an alternative copy for yourself. Anyone else involved should also be given a copy of the form.
Search tool
https://www.liv.asn.au/find-a-lawyer
New South Wales
To get started, you must first check the eligibility requirements
You must be 18 years or older
You must understand the nature and effect of appointing a power of attorney
Complete and submit the online form provided by the NSW government
Within 24 hours the NSW Trustee and Guardian will contact you to make an interview time
You may also organise an appointment at a NSW Trustee & Guardian branch, or you may contact a solicitor to organise your enduring power of attorney
Search tool to find a solicitor:
https://www.lawsociety.com.au/for-the-public/find-a-lawyer
Queensland
To begin, you must be eligible to create an enduring power of attorney (over the age of 18) and must understand the nature and effect of creating a power of attorney
You must then complete an enduring power of attorney form. At this point you may wish to consult a solicitor, public trustee, private trustee or a financial planner. The forms can be found here:
Once completed, you should keep the original copy in a safe place, and keep an alternative copy for yourself. Anyone else involved should also be given a copy of the form. This document does not need to be registered unless it will likely be used in transactions related to the selling or buying of land. There is a fee involved with registering the document.
Search tool to find a solicitor:
https://www.qls.com.au/Directory-Search
https://qldbar.asn.au/baq-home
ACT
You must ensure that you are eligible to create an enduring power of attorney (must be over the age of 18), and that you understand the nature and effect of creating a power of attorney
You must then complete an enduring power of attorney form. This outlines the powers given and when they begin, as well as ay conditions placed. The form is available here:
Once completed, you should keep the original copy in a safe place, and keep an alternative copy for yourself. Anyone else involved should also be given a copy of the form. This document does not need to be registered unless it will likely be used in transactions related to the selling or buying of land. There is a fee involved with registering the document.
For complex financial, medical or legal affairs it is advised that you consult a legal professional. They can offer you legal advice and help you prepare the required forms.
Search tool to find a solicitor:
https://www.actlawsociety.asn.au/
https://www.actbar.com.au/barristers/find-a-barrister/
Northern Territory
You must ensure that you are eligible to create an enduring power of attorney (must be over the age of 18), and that you understand the nature and effect of creating a power of attorney
You must then create the power of attorney document. You may write your own, which will likely require the consultation of a legal professional, or you may fill out a form created by the Northern Territory Government. The government form is available here:
https://nt.gov.au/__data/assets/pdf_file/0010/169075/power-of-attorney-form.pdf
The forms must be witnessed by a justice of the peace or Commissioner for Oaths, a police officer or a solicitor and must be signed.
Once completed, you should keep the original copy in a safe place, and keep an alternative copy for yourself. Anyone else involved should also be given a copy of the form. This document does not need to be registered unless it will likely be used in transactions related to the selling or buying of land. There is a fee involved with registering the document.
Search tool to find a solicitor:
https://lawsocietynt.asn.au/community/lrs-3.html
South Australia
You must ensure that you are eligible to create an enduring power of attorney (must be over the age of 18), and that you understand the nature and effect of creating a power of attorney
You must then either enlist the help of a legal professional to create an enduring power of attorney, or you may attempt to fill out the form yourself. The Legal Services Commission of South Australia offer a do-it yourself kit with a step-by-step guide. The signing must be witnessed by a solicitor, proclaimed peace officer or justice of the peace to be legally valid
Once completed, you should keep the original copy in a safe place, and keep an alternative copy for yourself. Anyone else involved should also be given a copy of the form.
Search tool to find a solicitor:
https://referral.lawsocietysa.asn.au/start
Western Australia
You must ensure that you are eligible to create an enduring power of attorney (must be over the age of 18), and that you understand the nature and effect of creating a power of attorney
Download the Enduring Power of Attorney Kit for free. This kit has step-by-step instructions to help you complete the form, with two copies of the form attached.
Alternatively, a solicitor or public trustee may prepare an enduring power of attorney for you.
Once completed, you should keep the original copy in a safe place, and keep an alternative copy for yourself. Anyone else involved should also be given a copy of the form. This document does not need to be registered unless it will likely be used in transactions related to the selling or buying of land. There is a fee involved with registering the document.
Search tool to find a solicitor:
https://www.lawsocietywa.asn.au/find-a-lawyer/
http://www.wabar.asn.au/find-a-barrister/
Tasmania
You must ensure that you are eligible to create an enduring power of attorney (must be over the age of 18), and that you understand the nature and effect of creating a power of attorney
You must then download and sign the power of attorney form.
Alternatively, you may consult a legal professional to create a power of attorney document for you.
The enduring power of attorney must be registered with the Lands and Titles Office to be valid. A small fee is involved for registration.
Search tool to find a solicitor:
https://tasbar.com.au/barristers/
https://www.lst.org.au/find-a-lawyer/
When an enduring power of attorney ends:
An enduring power of attorney will end if:
You revoke the power (while having the decision making capacity to do so)
You make a later enduring power of attorney
The relevant administrative body revokes the power
You die
What happens if you don’t make an enduring power of attorney?
If you do not appoint an enduring power of attorney, and become unable to make decisions, the relevant regulatory body may appoint someone for you.
Advanced Care Directives
What is an advanced care directive?
An advanced care directive outlines your preferences for your future, along with your beliefs, values and goals. It communicates your preferences for care to ensure that your loved ones and doctors are aware of your personal and health preferences. You may also formally appoint a substitute decision maker as part of your advanced care directive.
Why is an advanced care directive important?
Making an advanced care directive is an important part of planning your advanced care. As it is impossible to predict the future, you may not know what may change and when in regards to your health. You may have firm ideas currently about the way you would like to live your life, and the advanced care directive allows these to be communicated. In an emergency your loved ones may find it difficult to decide what is best for you. By planning in advance, they are made aware even if you are not able to tell them.
How can I make an advanced care directive?
Advanced care directives differ slightly by state, however the following information is a general guide to creating an advanced directive.
To make a valid advanced care directive you must be over the age of 18 and have to decision making capacity to do so. Decision making capacity refers to the ability of an individual to make decisions about legal matters, health matters, financial matters and personal matters.
The directive must be followed by family and health professionals. It cannot be overridden.
When making an advanced care directive it is essential that your doctor provides you with information and advice regarding your current health, and what may happen in the future. It is advised that you discuss you plans and wishes with a healthcare professional.
The advanced care directive will likely include:
The person you would like to nominate as your substitute decision maker
Information about what is important to you such as your values, goals and outcomes
The treatments and care you would like to refuse if you have a life-threatening injury or illness
Once you have completed the forms they should be signed and dated by yourself as well as your doctor and substitute decision maker. Copies should be given to family, the substitute-decision maker, your doctor and designated hospital, and anyone else you deem appropriate. Your advanced care directive may also be uploaded to your My Health Record account.
You do not need to consult a lawyer to create an advanced care directive. The forms for each state and territory are available here:
https://www.advancecareplanning.org.au/resources/advance-care-planning-for-your-state-territory
Selecting a substitute decision maker
Choosing your substitute decision maker is an important decision. They will make decisions about your medical treatment if you are not able. The substitute-decision maker should be someone:
You trust
Over the age of 18 years old
Who values your preferences for the future
Who will be comfortable making difficult decisions
You may choose a second person to act as an alternate decision-maker for any circumstances where the first decision maker is unable to make decisions on your behalf.
Depending on the state or territory this person may be called:
Enduring guardian
Medical treatment decision maker
Medical enduring power of attorney
An agent
A decision-maker
Changing your advance care directive
You are able to change your advanced care directive at any point in time. If changed, you must ensure that anyone who possessed the original document is provided with the updated version. The most recent version will be followed. Reviewing your advanced care directive may be necessary is your preferences change, if your substitute-decision mater changes or if your medical condition changes.
