Enduring Power of Attorney in Australia — What You Need to Know

Most people associate end-of-life planning with wills. But a will only takes effect after death. An enduring power of attorney matters while you are still alive — specifically when you can no longer make decisions for yourself.

What is an enduring power of attorney

A power of attorney is a legal document that authorises another person (your attorney) to make decisions on your behalf. An enduring power of attorney specifically continues to be valid if you lose mental capacity — which is the point at which you most need someone to act for you.

There are two types:

• Financial and legal — authorises your attorney to manage your financial affairs, including banking, property, and investments
• Medical and personal — authorises your attorney to make health and lifestyle decisions on your behalf (sometimes called a medical power of attorney or enduring guardian, depending on the state)

What happens without one

If you lose capacity and have no enduring power of attorney in place, your family has no automatic legal authority to act on your behalf. To manage your affairs, they would need to apply to a state tribunal or court for a guardianship or administration order. This process is time-consuming, expensive, and stressful — and the outcome may not align with your wishes.

Who to appoint

Your attorney should be someone you trust absolutely — a spouse, adult child, sibling, or close friend. Consider:

• Whether they are willing and able to take on the responsibility
• Whether they understand your values and wishes
• Whether they can act calmly under pressure
• Whether they are likely to outlive you

You can appoint more than one attorney, either jointly (both must agree on decisions) or severally (either can act independently). You can also appoint a substitute attorney in case your first choice is unavailable.

How to set one up

You can complete an enduring power of attorney yourself using the official form for your state, or have a solicitor prepare it. The document must be witnessed correctly — typically by a lawyer, justice of the peace, or other authorised witness, depending on your state.

Having a solicitor involved is advisable, particularly for complex financial arrangements or where family relationships are complicated. The cost is typically a few hundred dollars.

When does it take effect

A financial enduring power of attorney can take effect immediately upon signing (useful if you want someone to assist you now) or only upon loss of capacity — you specify this in the document. A medical power of attorney generally only takes effect when you lose the capacity to make health decisions yourself.