Enduring Power of Attorney

Every adult can decide who will handle their affairs if they are unable to do so in the future.

Most people assume that things will somehow work themselves out — that family members will take care of matters, or that the system will know how to act when the time comes. In reality, without proper arrangements in place, important decisions may pass to people you did not choose, disagreements may arise between family members, and it may become necessary to apply to court for the appointment of a guardian. An enduring power of attorney allows you to state clearly and precisely who will handle your affairs, and how decisions will be made on your behalf, if and when you are no longer able to make them yourself. An enduring power of attorney is not only a legal document. It is a way to preserve your control over important decisions, even in the future.

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What is an enduring power of attorney?

An enduring power of attorney is a legal document in which an adult, while still legally competent and able to understand the meaning and implications of the document, determines who will be authorized to act on their behalf in the future, in which areas — including personal, medical and property matters — and how decisions will be made in practice. The document takes effect only when the person is no longer able to make decisions independently, in accordance with the conditions set out in the document and, where required, subject to the appropriate approval.

Why it matters more than many people realize.

Many people think of an enduring power of attorney as a formal document. In practice, it is a tool that can help prevent difficult situations, including: disagreements between family members regarding care or finances decisions being made in a way that does not reflect the person’s wishes delays in handling medical or financial matters the need for legal proceedings to appoint a guardian When these matters are arranged in advance, the process becomes clearer, more orderly and less uncertain.

What can an enduring power of attorney include?

An enduring power of attorney may address three main areas. Personal and medical matters may include decisions concerning lifestyle, place of residence, medical care and personal welfare. Property matters may include the management of assets, funds and obligations, as well as the sale or lease of property. Advance instructions allow the principal to clearly state how matters should be handled, under what conditions and what is important for them to preserve. The document may also appoint one or more attorneys-in-fact, an alternate attorney-in-fact, a mechanism for resolving disagreements, persons who should receive notifications and updates, and additional oversight arrangements where appropriate.

Types of enduring powers of attorney:

An enduring power of attorney can be tailored to the scope of authority required. It may cover personal, medical and property matters in full, be limited to property matters only, or focus specifically on medical decisions. A medical enduring power of attorney may, in certain circumstances, also be signed before authorized medical professionals. The appropriate form depends on the person’s circumstances and needs.

How the process works in practice:

Preparing an enduring power of attorney is not simply a matter of signing a form. The law requires the document to be prepared and signed before an attorney who has completed dedicated training by the Administrator General. The process involves understanding the personal and family circumstances, identifying sensitive issues and future risks, drafting the authorities and instructions precisely, ensuring that the document reflects the principal’s wishes, obtaining the required signatures, and formally depositing the document. The purpose is to ensure that the document not only exists, but can function effectively when it is needed.

What happens after signing?

The enduring power of attorney is deposited with the Administrator General, and this deposit is a condition for its validity. Once the conditions set out in the document are met, the attorney-in-fact may begin acting, decisions are made in accordance with the principal’s instructions, and the person’s affairs can continue to be managed in an orderly manner without the need for further legal intervention.

Questions and Answers

What is important to know before a real estate transaction?

What is the difference between an Enduring Power of Attorney and guardianship?

An Enduring Power of Attorney allows you to choose in advance who will act on your behalf if you are no longer able to make decisions for yourself. Without such arrangements, it may be necessary to apply to the court for the appointment of a guardian - a process that can be lengthy, complex, and may not necessarily reflect the individual's wishes.
When does an Enduring Power of Attorney come into effect?

An Enduring Power of Attorney comes into effect when the person is no longer able to understand or make decisions regarding the matters covered by it, or in accordance with the conditions specified in the document.

In many cases, appropriate confirmation - usually medical - is required in order to activate it.
Can an Enduring Power of Attorney be amended or revoked?

Yes. As long as the person has legal capacity and understands the significance of the decision, the document may be amended or revoked.

Any changes must be made and deposited in accordance with the applicable legal requirements.
How many attorneys can be appointed?

You may appoint one attorney, several attorneys, and even an alternate attorney. You can also specify whether they are to act jointly or separately, and how disagreements between them should be resolved.
Can an attorney receive payment for acting under an Enduring Power of Attorney?

By default, the attorney does not receive payment. However, the person granting the power may expressly provide for remuneration in the Enduring Power of Attorney.
Is a lawyer required to prepare an Enduring Power of Attorney?

Yes. An Enduring Power of Attorney must be prepared and signed before a lawyer who has completed the required specialist training.

Proper preparation is important to ensure that the document meets the legal requirements and can operate as intended when it is needed.
How much does an Enduring Power of Attorney cost?

The cost varies depending on the complexity of the circumstances, the number of attorneys appointed, and the scope and detail of the instructions included in the document.

The fee should be viewed in the context of ensuring that the document is properly structured and reflects the individual's wishes.
Does an Enduring Power of Attorney replace a will?

No. They serve different purposes. An Enduring Power of Attorney governs the management of a person's affairs during their lifetime if they become unable to make decisions for themselves, while a will determines how their estate is to be distributed after death.
Who should consider making an Enduring Power of Attorney?

Any adult who wishes to retain control over how important decisions concerning their life and affairs will be made in the future may consider making one.

There is no need to wait until old age. The arrangements must be made while the person still has the capacity to understand and make the relevant decisions.
What happens if I do not make an Enduring Power of Attorney?

If a person loses the capacity to manage their own affairs without having made an Enduring Power of Attorney, family members may need to apply to the court for the appointment of a guardian.

This can involve additional time, expense, and potential disagreement, which is why arranging these matters in advance can provide greater clarity and control.

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