Powers of Attorney & Guardianship

Powers of Attorney & Guardianship FAQ


POWER OF ATTORNEY BASICS

What’s a Power of Attorney ?
A Power of Attorney is a legal document under which a person (the principal or donor) gives the power to someone else (the attorney or donee) to do things or make decisions for them and on their behalf.

Most Powers of Attorney are prepared as deeds. This is to address a common law rule that a person can only execute a deed on behalf of someone else if their authority to do so is itself a deed.

What’s a deed ?
A deed is a type of legal document that has special significance at law because of the formality associated with its execution.

In medieval times, a person would signify their binding personal commitment to perform an obligation by putting that commitment in writing, sealing it with their personal seal (usually a stamp with the person’s name and/or family coat of arms on it impressed into molten wax on the document) and then delivering the sealed document to the party to whom they were making the commitment. This is where the expression “signed, sealed and delivered” comes from.

Nowadays, to create a deed simply requires that the document is expressed to be a deed and signed by each party to be bound in the presence of a witness.

What’s a General Power of Attorney ?
A General Power of Attorney is a Power of Attorney that authorises the attorney to do virtually anything that the principal can do.

In all Australian States and Territories other than the Northern Territory and Western Australia, you can make a General Power of Attorney by simply including a statement in it that it authorises your attorney to do anything that you may lawfully authorise an attorney to do (this is usually called a “short form” General Power of Attorney).

If you want to do a General Power of Attorney in the Northern Territory or Western Australia, you have to include in the Power of Attorney all of the particular powers that you wish to give your attorney (this is usually called a “long form” General Power of Attorney).

What’s an Enduring Power of Attorney ?
An Enduring Power of Attorney is a special type of Power of Attorney that continues after (‘endures’) the loss of legal capacity by the person who appointed the attorney. This distinguishes it from a “standard” Power of Attorney, which ceases to be legally effective if the person who appointed the attorney loses legal capacity.

Broadly speaking, there are 4 different types of Enduring Power of Attorney that can be done in Australia, depending on the State or Territory in which you live:

Enduring Power of Attorney – Financial Matters (all States and Territories)

Enduring Power of Attorney – Personal/Health Matters (for ACT and QLD residents)*

Enduring Power of Attorney – Combined Financial and Personal/Health Matters (for ACT and QLD residents)

Enduring Power of Attorney – Medical Treatment (for SA and VIC residents)

* In the ACT, you can also do an Enduring Power of Attorney that just covers health matters and excludes other personal matters.

I live somewhere other than the Australian Capital Territory or Queensland. Why can’t I do an Enduring Power of Attorney – Personal/Health Matters ?
That’s because the Australian Capital Territory and Queensland are the only jurisdictions with laws allowing these types of Power of Attorney.

If you live in New South Wales, South Australia, Tasmania or Victoria you can do something similar called an Appointment of Enduring Guardian. Under that document, you appoint a guardian who can make decisions about personal, health and lifestyle matters for you if you cease to be able to make those decisions for yourself.

There is no equivalent to an Enduring Power of Attorney – Personal/Health Matters or an Appointment of Enduring Guardian in the Northern Territory or Western Australia.

For more information, see ‘What’s the difference between an Appointment of Enduring Guardian and an Enduring Power of Attorney ?’

I live somewhere other than the Australian Capital Territory or Queensland. Why can’t I do an Enduring Power of Attorney – Combined Financial and Personal/Health Matters ?
That’s because the Australian Capital Territory or Queensland are the only jurisdictions with laws allowing these types of Power of Attorney.

If you live in New South Wales, South Australia, Tasmania or Victoria you can achieve something similar by combining an Enduring Power of Attorney – Financial Matters with something called an Appointment of Enduring Guardian. The Enduring Power of Attorney – Financial Matters will allow your attorney to make decisions about financial matters, while the Appointment of Enduring Guardian will allow your guardian to make decisions about personal, health and lifestyle matters for you if you cease to able to make those decisions for yourself.

There is no equivalent to an Enduring Power of Attorney – Personal/Health Matters or an Appointment of Enduring Guardian in the Northern Territory or Western Australia.

For more information, see ‘What’s the difference between an Appointment of Enduring Guardian and an Enduring Power of Attorney?’

I live somewhere other than South Australia or Victoria. Why can’t I do an Enduring Power of Attorney – Medical Treatment ?
That’s because South Australia and Victoria are the only jurisdictions with laws allowing these types of Power of Attorney.

If you live in New South Wales or Tasmania you can appoint someone to make decisions about your medical treatment by doing an Appointment of Enduring Guardian. Under that document, your guardian will be able to make decisions about other personal, health and lifestyle matters for you, as well as medical treatment, if you cease to able to make those decisions for yourself.

If you live in the Australian Capital Territory or Queensland you can appoint someone to make decisions about your medical treatment by doing an Enduring Power of Attorney – Personal/Health Matters. Under that document, your attorney will be able to make decisions about other personal, health and lifestyle matters for you, as well as medical treatment, if you cease to able to make those decisions for yourself.

There is no equivalent to an Enduring Power of Attorney – Medical Treatment, an Enduring Power of Attorney – Personal/Health Matters or an Appointment of Enduring Guardian in the Northern Territory or Western Australia.

For more information, see ‘What’s the difference between an Appointment of Enduring Guardian and an Enduring Power of Attorney?’

WHAT TYPE OF POWER OF ATTORNEY SHOULD I USE ?

I am going to be away from home for a while and I want to appoint someone to look after my financial affairs while I am away. What type of Power of Attorney should I use ?
You should use a General Power of Attorney, which will give your attorney very broad powers to manage your financial affairs. Unless you say otherwise, this will include the power to operate bank accounts, to buy and sell all types of property, to borrow and lend money, to sign contracts and to exercise many other powers on your behalf. Obviously, you should only give these sorts of powers to someone you trust implicitly.

You should note that a General Power of Attorney will cease to be effective if you become legally incapacitated. If you want your attorney to look after your financial affairs after you become legally incapacitated, you will need to do an Enduring Power of Attorney.

I am going to be away from home for a while and I want to appoint someone to sign some legal documents for me while I am away. What type of Power of Attorney should I use ?
You could use a General Power of Attorney but if you only want your attorney to sign particular documents, we recommend that you use a limited Power of Attorney authorising your attorney just to sign the documents in question.

You should note that a General Power of Attorney and a limited Power of Attorney to sign documents will cease to be effective if you become legally incapacitated. If you want your attorney to be able to sign documents after you become legally incapacitated, you will need to do an Enduring Power of Attorney.

I am going to be away from home for a while and I have a portfolio of securities that I want someone to look after while I am away. What type of Power of Attorney should I use ?
You could use a General Power of Attorney but if you only want your attorney to make decisions about your securities portfolio, we recommend that you use a limited Power of Attorney authorising your attorney just to deal with the securities in question.

You should note that a General Power of Attorney and a limited Power of Attorney to deal with securities will cease to be effective if you become legally incapacitated. If you want your attorney to be able to make decisions about your securities portfolio even after you become legally incapacitated, you will need to do an Enduring Power of Attorney.

I want to appoint somebody to look after my financial affairs in case I become incapable of doing that for myself (eg if I have an accident or illness that puts me in a coma or I contract something like Alzheimer’s disease). What type of Power of Attorney should I use ?
Regardless of where you live in Australia, you can do this by signing an Enduring Power of Attorney – Financial Matters.

If you live in the Australian Capital Territory or Queensland, you can also do this by signing an Enduring Power of Attorney – Combined Financial and Personal/Health Matters, which will give your attorney the ability to make decisions about both financial matters and personal and health matters.

I want to appoint somebody who can make decisions about personal and health matters (such as where I should live and what sort of care I should get) in case I become incapable of doing that for myself. What type of Power of Attorney should I use ?
If you live in the Australian Capital Territory or Queensland, you can do this by signing an Enduring Power of Attorney – Personal/Health Matters, which will give your attorney the ability to make decisions about these types of matters, or an Enduring Power of Attorney – Combined Financial and Personal/Health Matters, which will give your attorney the ability to make decisions both about these types of matters and financial matters as well.

If you live in New South Wales, South Australia, Tasmania or Victoria, to do this, you will need to do an Appointment of Enduring Guardian.

Unfortunately, if you live in the Northern Territory or Western Australia, you can’t do this as those jurisdictions do not permit Enduring Powers of Attorney that cover personal and health matters and currently do not recognise the concept of an enduring guardian.

See “When should I use an Enduring Power of Attorney and when should I use an Appointment of Enduring Guardian ?”

I want to appoint somebody who can make decisions for me about the sort of medical treatment I should receive in case I become incapable of doing that for myself. What type of Power of Attorney should I use ?
If you live in South Australia or Victoria, you can do this with an Enduring Power of Attorney – Medical Treatment.

If you live in the Australian Capital Territory or Queensland, you can do this by signing an Enduring Power of Attorney – Personal/Health Matters, which can cover matters related to medical treatment as well as other types of decisions on personal and health matters. You can also do an Enduring Power of Attorney – Combined Financial and Personal/Health Matters, which will give your attorney the ability to make decisions both about financial matters and personal and health matters.

If you live in New South Wales, South Australia, Tasmania or Victoria, to do this, you will need to do an Appointment of Enduring Guardian. Again this will authorise your guardian to make decisions about all types of personal and health matters, including decisions about medical treatment.

Unfortunately, if you live in the Northern Territory or Western Australia, you can’t do this as those jurisdictions do not permit Enduring Powers of Attorney that cover personal and health matters or medical treatment and currently do not recognise the concept of an enduring guardian.

See “When should I use an Enduring Power of Attorney and when should I use an Appointment of Enduring Guardian ?”

APPOINTING AN ATTORNEY

Who can appoint an attorney ?
Anyone who is over 18 years of age and who has legal capacity can appoint an attorney.

A person under 18 years of age can’t appoint an attorney under any type of Enduring Power of Attorney in the Australian Capital Territory or Queensland or under an Enduring Power of Attorney – Medical Treatment in South Australia. They also can’t appoint an attorney under a General Power of Attorney in the Australian Capital Territory.

Even though technically a person under 18 years of age (a minor) who understands what is involved may be able to appoint an attorney under other types of Powers of Attorney and/or in other jurisdictions, the attorney will only be able to do the limited things that the minor themselves can do at law.

A person under 18 years of age should seek specific legal advice before they appoint an attorney.

A person who lacks legal capacity can’t appoint an attorney. Any Power of Attorney they sign will not be legally effective.

Who can be an attorney?
Subject to some minor exceptions, anyone who is over 18 years of age and has legal capacity can be an attorney.

A person’s paid carer or current health-care provider is not able to act as their attorney under any form of Enduring Power of Attorney in Queensland.

A person who is under 18 years of age can’t act as an attorney under any type of Enduring Power of Attorney in the Australian Capital Territory or Queensland or under an Enduring Power of Attorney – Medical Treatment in South Australia. They also can’t act as an attorney under a General Power of Attorney in the Australian Capital Territory.

Even though technically a person under 18 years of age (a minor) who understands what is involved may be able to act as an attorney under other types of Powers of Attorney and/or in other jurisdictions, they can’t exercise any powers greater than the limited powers they have at law as a minor.

You must seek specific legal advice before appointing someone under 18 years of age as your attorney.

A person who does not have legal capacity can’t act as an attorney.

What does ‘legal capacity’ mean ?
For adults, this means the capacity to make and be bound by legal decisions. An adult has legal capacity if they understand the nature and effect of their decisions and are able to communicate them to others.

Examples of things that might cause a lack of legal capacity in adults include:

* brain damage or unconsciousness caused by an accident or trauma;
* genetic conditions (such as Down Syndrome);
* mental illness or other psychiatric conditions;
* degenerative diseases (such as Alzheimer’s Disease);
* the effects of a severe stroke;
* the effects of drugs (medicinal or otherwise); and
* the effects of advanced age.

There are special rules about the legal capacity of children, reflecting their status as ‘minors’. They have legal capacity only to do certain things and then only if they understand the nature and effect of what they are doing.

Who should I appoint as my attorney ?
That’s up to you. However, you should note that any acts or decisions made by your attorney within the scope of their Power of Attorney will be legally binding upon you. You should therefore only appoint someone you trust to be your attorney and who you are confident will exercise the powers in the Power of Attorney in your best interests.

Can I appoint more than one attorney in the same Power of Attorney ?
The rules here vary depending on the type of Power of Attorney and where the Power of Attorney is done.

For example, for Enduring Powers of Attorney – Medical Treatment in Victoria, you can appoint two (but not more) attorneys to act one after the other – ie the first being the primary attorney and the second being a back-up in case the first cannot act. However, you can’t appoint multiple attorneys to act at the same time.

For Enduring Powers of Attorney – Medical Treatment in South Australia, you can appoint any number of attorneys to act one after another. Again, however, you can’t appoint multiple attorneys to act at the same time.

For Enduring Powers of Attorney – Financial Matters in Western Australia, you can appoint two (but not more) attorneys, either to act at the same time or one after the other.

For other types of Powers of Attorney and/or in other places you generally have the option to appoint two or more attorneys to act at the same time or two or more attorneys to act one after another.

Where you appoint two or more attorneys to act at the same time, in most cases, you can appoint them so that:

* any one of them can act alone or any number of them can act together (this is referred to by lawyers as a “joint and several” appointment); or

* all of them must act together (this is referred to by lawyers as a “joint” appointment).

In some cases, you also have a further option to appoint a number of attorneys on the basis that a specified number (eg 2 out of 3) can act.

If you use James Legal Consultants to prepare your Power of Attorney, we will tell you the different options available to you to appoint multiple attorneys for the type of Power of Attorney you select.

If you appoint a number of attorneys to act jointly rather than jointly and severally or one after another, you should consider the following issues:

* whether the attorneys are compatible and able to work together to make decisions and act in your best interests. If they are not able to reach agreement, that can lead to a stalemate or, worse still, the need to apply to the Court for an order to resolve the disagreement.

* what will happen if one of them can’t or won’t act as your attorney (eg if they die, become legally incapacitated, resign or just simply refuse to act). You also need to think about what will happen if one of them is not available to act (eg because they are away on holidays or business).

The law generally provides that where you appoint joint attorneys, all of them must join in any act in order for it to be effective. If for any reason one of them can’t act, the remaining attorneys won’t be able to act either and your Power of Attorney will effectively become unusable.

In certain (but not all) types of Powers of Attorney, you are able to include a provision in a joint appointment to deal with these types of situations and give the remaining attorneys the authority to act. We will usually give you that option in our service, where it is available.

Unless you have a particular reason for wanting to appoint joint attorneys, in most situations you will be better off making their appointment joint and several or appointing them to act one after the other rather than at the same time.

Can I have more than one Power of Attorney ?
In most cases, yes.

If the Powers of Attorney deal with different matters, there’s no problem. If they deal with the same matters, then it’s really no different to appointing a number of attorneys in the one Power of Attorney who can act jointly and severally (ie independently of each other).

However, in the Australian Capital Territory, Queensland and Victoria, you are not allowed to have two separate Enduring Powers of Attorney that cover the same type of matter. In these jurisdictions, if you make a new Enduring Power of Attorney, it will automatically terminate any earlier one. In the Australian Capital Territory, this rule also extends to General Powers of Attorney.

We generally don’t recommend having more than one Enduring Power of Attorney in any event. Having different people appointed under different documents independently able to make decisions about your financial affairs or personal and health matters or medical treatment while you are incapacitated could lead to conflict.

Can someone who I wish to appoint as my attorney refuse to take on that role ?
Yes, that’s why we recommend that you speak to the person who you propose to appoint as your attorney before you appoint them and get their agreement to act.

This is especially important for Enduring Powers of Attorney, where in almost all cases the attorney has to sign the Enduring Power of Attorney to signify their agreement to act as your attorney. The Enduring Power of Attorney will not be legally effective until the attorney has signed the document.

If someone has agreed to act as my attorney, can they later resign or refuse to act? If they do, what should I do?
In most cases, yes. You can’t force someone to act as your attorney if they don’t want to, even if they initially agreed to take on the role.

However, in some (but not all) States and Territories for Enduring Powers of Attorney where they have come into effect because the principal has become legally incapacitated. In that situation, the attorney is not allowed to resign without first seeking approval from a Court or Tribunal. This allows the Court or Tribunal to ensure that a suitable replacement is appointed to look after the principal’s interests. Even in those States and Territories, however, the attorney can always resign their appointment after the Power of Attorney has been signed and before it has come into effect because of the principal’s incapacity.

If your attorney resigns or otherwise indicates that they no longer wish to act as your attorney, the best thing to do is to terminate their Power of Attorney and appoint a new attorney (see “Can I terminate a Power of Attorney after it has been signed? How do I do that?”).

Do I have to pay someone to act as my attorney ?
No, you are not required to pay someone to act as your attorney, although you can if you wish.

If you appoint a professional person (such as a lawyer, accountant or the Public Trustee) to act as your attorney, they will normally expect to be paid for their services. In most cases, they won’t accept the appointment unless an agreement is in place for them to be paid their usual fees.

Whether or not they are being paid for their services, if your attorney incurs any out of pocket expenses as a result of acting as your attorney, they are entitled to be reimbursed for those expenses.

I am the trustee of a trust. Can I appoint someone to act as my attorney in relation to the trust ?
That depends on the terms of the trust and the type of Power of Attorney.

You can’t use a statutory short form General Power of Attorney to authorise an attorney to exercise trustee powers under New South Wales or South Australian law and it will rarely, if ever, be appropriate for a trustee to sign a short form General Power of Attorney in other jurisdictions or a long form General Power of Attorney anywhere. The same is true for an Enduring Power of Attorney. A limited Power of Attorney to sign documents may however be permissible.

Before you give a limited Power of Attorney to sign documents, you need to make sure that you have the power to appoint an attorney under the trust deed or other document governing the trust.

You should seek specific legal advice that covers your situation.

I am the executor or administrator of a deceased estate. Can I appoint someone to act as my attorney in relation to the estate?
That depends.

You can’t use a statutory short form General Power of Attorney to authorise an attorney to exercise estate powers under New South Wales or South Australian law and it will rarely, if ever, be appropriate for an executor or administrator of a deceased estate to sign a short form General Power of Attorney in other jurisdictions or a long form General Power of Attorney anywhere. The same is true for an Enduring Power of Attorney. A limited Power of Attorney to sign documents may however be permissible.

Before you give a limited Power of Attorney to sign documents, you need to make sure that you have the power to appoint an attorney under the will or the laws governing the administration of deceased estates.

You should seek specific legal advice that covers your situation.

SIGNING AND OTHER FORMALITIES

How do I sign a Power of Attorney ?
A Power of Attorney is invariably done in the form of a deed. For a deed to be validly executed, it needs to be signed by the principal in the presence of a witness. The witness must also sign their own name to the deed acknowledging the fact that it was signed in their presence.

Some additional signing requirements may apply, depending on the type of Power of Attorney you do and the State or Territory in which you sign it.

For example, a General Power of Attorney in the Australian Capital Territory has to be signed by the principal in the presence of two witnesses. An attorney appointed in the General Power of Attorney can’t be a witness and at least one of the witnesses must not be a relative of the principal or of an attorney.

Similarly, all Enduring Powers of Attorney have special signing and witnessing requirements. In some States/Territories, there need only be one witness and in other there must be two witnesses. In some cases, the witness or witnesses must meet certain requirements (for example, they might need to be someone who is authorised to administer an oath or they might be prohibited from being a relative of the principal or of the attorney). In almost all cases, an Enduring Power of Attorney needs to be signed by the attorney to signify that they have agreed to act as your attorney.

The signing provisions in any Power of Attorney we prepare for you will explain clearly where you and any witnesses or other parties have to sign.

You should read a Power of Attorney carefully before you sign it and make sure that it accurately reflects your wishes.

Apart from signing, are there any other formalities that I have to comply with for my Power of Attorney to be effective ?
There may be, depending on where you live, what type of Power of Attorney you do, and what it is going to be used for.

Stamping

If you live in the Northern Territory, any Power of Attorney you sign will need to have stamp duty paid on it to the Territory Revenue Office. The amount of stamp duty payable is $20.00 for the first signed original, plus $5.00 for each duplicate or counterpart.

The Power of Attorney must be lodged with the Commissioner of Taxes for an assessment of duty within 60 days of being signed otherwise penalties for late lodgement may apply. More importantly, until the stamp duty is paid, the Power of Attorney is of no legal force or effect.

eCommLegal can arrange the stamping of your Power of Attorney for you or, alternatively, you can do this yourself (we will give you instructions how).

Stamp duty current as at 1 November 2007.

Registration

If your Power of Attorney is going to be used to sign a registrable document relating to land (eg a transfer, mortgage or registered lease) in any State or Territory of Australia apart from Victoria,1 it will need to be registered in the State or Territory where the land is located.

You only have to do this if your Power of Attorney is used to sign registrable documents relating to land. If there is no immediate need for your attorney to sign any such documents, you can wait to register the Power of Attorney. If your attorney needs to sign documents relating to land down the track, then you or they can arrange registration of the Power of Attorney at that time.

An over the counter registration fee will be payable to the government department where the Power of Attorney is registered, as follows:

poa-reg

Fees current as at 1 November 2007 & are subject to change without notice.

If your Power of Attorney is an Enduring Power of Attorney – Financial Matters and you live in the Northern Territory, it will need to be registered at the Registrar-General’s Office in the Northern Territory. This applies even if it will not be used to sign documents relating to land in the Northern Territory. A registration fee of $130.00 is payable to the Registrar-General.

If you live in Tasmania, any type of Power of Attorney you do there will need to be registered with the Recorder of Titles in Tasmania. This applies even if it will not be used to sign documents relating to land in Tasmania. A registration fee of $90.50 is payable to the Recorder of Titles.

James Legal Consultants can arrange the registration of your Power of Attorney for you or, alternatively, you can do this yourself (we will give you instructions how).

How many copies of my Power of Attorney should I sign ?
It is usually a good idea to sign at least two originals – one for your records and the other for the use of your attorney. Additional signed originals may be required if your Power of Attorney needs to be registered with the Land Titles Office.

We recommend that you don’t give the Power of Attorney to your attorney (or anyone else) until they need to use it. The original signed Power of Attorney should be kept in a safe place and you should tell your attorney where the document is kept so they can access it if the need arises.

What should I do with my Power of Attorney after it is signed ?
After it has been signed and, if necessary stamped and registered, you should keep the signed original of your Power of Attorney in a safe place.

In some cases, you may need to produce an original of your Power of Attorney at a later date. For example, if your Power of Attorney is going to be used by the attorney to operate a bank account, the bank will often want to see an original of the Power of Attorney before it allows the attorney to have access to the account. If your Power of Attorney is going to be used to sign documents relating to shares in a company (eg a share transfer or an appointment of proxy), the company may also require production of the original before it will accept those documents.

I can’t physically sign documents. Can I still give a Power of Attorney ?
Yes, you can authorise someone else to sign the Power of Attorney on your behalf.

There is a special process for doing this. Basically, you state to the person who is going to sign the Power of Attorney for you, and to the person or persons who are going to witness their signature, that you know and approve the contents of the Power of Attorney. You then specifically direct the person, in the presence of the witness or witnesses, to sign the Power of Attorney on your behalf. The person and the witness or witnesses must sign the Power of Attorney in each other’s presence.

Specific wording needs to be included in the Power of Attorney to record the process followed and, in some jurisdictions, it may be advisable to have the parties swear an affidavit confirming that it was properly signed.

DURATION

When does a Power of Attorney take effect? Can I put a start date on my Power of Attorney ?
Legally, an Enduring Power of Attorney covering personal and health matters or medical treatment can only come into effect if and when the principal loses the capacity to make or communicate decisions about such matters for themselves. There is no need to specify a start or end date in these types of Power of Attorney.

The general rule for all other types of Powers of Attorney is that unless you say otherwise in the Power of Attorney, it will take effect as soon as it has been properly signed and witnessed.

This general rule applies to Enduring Powers of Attorney – Financial Matters (ie they will come into effect when they have been properly signed and witnessed unless you specify otherwise). If you are doing one of these Powers of Attorney simply as a precaution and you really only want it to operate if you become legally incapacitated, you should expressly say so in the Power of Attorney.

How long does a Power of Attorney last? Can I put an end date on my Power of Attorney ?
Legally, an Enduring Power of Attorney covering personal and health matters or medical treatment can only operate while the principal is not able to make and communicate decisions about such matters for themselves. There is no need to specify a start or end date in these types of Power of Attorney.

The general rule for all other types of Powers of Attorney is that unless you say otherwise in the Power of Attorney, it will continue indefinitely until it has exhausted its purpose (eg it authorised the attorney to sign a particular document and that document has been signed) or you choose to terminate it.

You can, if you wish, stipulate in a Power of Attorney a specific date or event when it comes to an end.

You generally won’t want to put an end date on any type of Enduring Power of Attorney since the reason for having it in most cases is to protect you in case you become legally incapacitated. It is best in this case to state in the Power of Attorney that it starts to operate if you become legally incapacitated and continues to operate while you remain in that state.

However for other types of Powers of Attorney, we strongly recommend that you consider putting an end date in the Power of Attorney. This should be the latest date by which you would reasonably expect your attorney to have done the things you want them to do under the Power of Attorney (allowing for delays and contingencies). That way you protect yourself in case you forget to terminate the Power of Attorney.

How often should I review my Power of Attorney ?
Because the different Australian States and Territories have different laws governing Powers of Attorney, you should review any Power of Attorney you have in place whenever you move interstate. This is especially so for Enduring Powers of Attorney covering personal and health matters or medical treatment, as the various State/Territory laws governing these differ a lot.

You should also review your Power of Attorney whenever there is a material change in your personal circumstances or those of your attorney. The sorts of changes that might cause you to consider the appropriateness of your Power of Attorney include if:

* you marry or intend to marry;

* you have a child or grandchild;

* you separate from or divorce your spouse/partner;

* there is a material change in your health or your attorney’s health; or

* you have a falling out with your attorney.

It is not a good idea to have a Power of Attorney outstanding any longer than is necessary. If you no longer need a Power of Attorney, you should terminate it (see “Can I terminate a Power of Attorney after it has been signed? How do I do that?”).

POWERS AND DUTIES OF AN ATTORNEY

What sort of things can an attorney do ?
Your attorney can do whatever they are authorised to do in your Power of Attorney.

It is therefore important that you read your Power of Attorney carefully and make sure that you are completely comfortable giving the powers it contains to your attorney.

In this regard, the form of General Power of Attorney and Enduring Power of Attorney – Financial Matters we provide are very powerful documents. They will authorise your attorney to do virtually anything that you can lawfully do with your property or finances. For example, they will allow the attorney to sell your home or other property and to withdraw money from your bank account.

The same is true for the form of Enduring Power of Attorney – Personal/Health Matters we provide. It will enable your attorney to make decisions about where you should live, what you should eat, what you should wear, what sort of medical treatment you should receive and whether medical treatment (including life support) should be withheld or withdrawn if you are not able to make those decisions for yourself.

It is also true for the form of Enduring Power of Attorney – Medical Treatment we provide. It will enable your attorney to make decisions about what sort of medical treatment you should receive and whether medical treatment (including life support) should be withheld or withdrawn if you are not able to make those decisions for yourself.

In all cases, you should only give these very broad powers to someone you trust.

Can an attorney delegate their powers to someone else ?
Not unless the Power of Attorney actually authorises them to do so.

In our standard Powers of Attorney, we do not include an authorisation for the attorney to delegate their powers to some else and therefore they are not able to do this. We believe that if you have chosen someone you trust to be your attorney, they should not be able to give their powers away to someone else that you may not even know, let alone trust. That is especially so for our General and Enduring Powers of Attorney, which confer extremely broad powers on the attorney.

Is there anything an attorney can’t do ?
Your attorney can’t do anything that they are not authorised to do in your Power of Attorney or that is contrary to the law.

There are some things that an attorney can’t do, even if you wanted them to, but they are very limited and they vary between the different States and Territories and between the different types of Powers of Attorney.

For example:

* If you live in New South Wales or South Australia, a short form General Power of Attorney can’t authorise your attorney to exercise powers or to perform duties or functions you have as a trustee or legal personal representative.

* If you live in the Australian Capital Territory or Queensland, an Enduring Power of Attorney that covers personal/health matters can’t authorise your attorney to make decisions about “special personal matters” (these include decisions about your will, appointing someone as your attorney, voting at elections or consenting to adoption or marriage) or “special health matters” (these include sterilisation, termination of pregnancy, donation of body tissue, electroconvulsive therapy or psychiatric surgery).

The examples above are not exhaustive.

Can I put a limit on the things my attorney can do ?
Yes, it is possible to limit the powers given to your attorney in the Power of Attorney, or to include instructions on how and when the powers are to be exercised. For example, you could limit the Power of Attorney by:

* making it operative only if certain conditions are met (eg only while you are overseas);

* restricting the particular types of decisions your attorney can make on your behalf; and

* restricting the particular types of property your attorney can deal with on your behalf.

Unfortunately, because of the almost limitless variations that could be involved here, we are not able to offer this facility in our online service.

To avoid giving your attorney broader powers than are needed, you should choose the type of Power of Attorney that best meets your particular requirements. For example, if you want to appoint an attorney to sign specific documents, use a limited Power of Attorney that just authorises your attorney to sign the documents in question rather than a General Power of Attorney or an Enduring Power of Attorney – Financial Matters. Similarly, if you want to appoint an attorney to manage a portfolio of securities, use a limited Power of Attorney that just authorises your attorney to deal in securities rather than a General Power of Attorney or an Enduring Power of Attorney – Financial Matters.

Beyond that, if you want to limit the powers given to your attorney to something narrower than those provided in our standard documents, our services are structured so that we can prepare an individually tailored document for you.

What legal duties does an attorney have ?
Your attorney is regarded as your agent and will be subject to the same legal duties as agents generally. These include:

* to act within the authorities conferred upon them in the Power of Attorney;

* to exercise any discretion given to them honestly and in your interests;

* to exercise their powers as an attorney with reasonable care, skill and diligence;

* to avoid a situation where their personal interest conflicts with their duty to you;

* not to abuse their position as agent to make a profit or other benefit for themselves; and

* to keep proper records and accounts of all dealings and transactions they do as your attorney.

If your attorney fails to comply with these duties, they may have to compensate you for any loss you suffer as a result.

How can I be sure my enduring attorney will act in my best interests while I am incapacitated ?
Your attorney will be personally liable at law for any wrongful acts or omissions they make on your behalf as your enduring attorney.

If an enduring attorney is not acting in your best interests, often a concerned family member or friend will raise the alarm. That may result in an investigation by the relevant guardianship tribunal in your State or Territory. During such an investigation, the attorney’s powers are usually frozen.

Your best protection, however, is to select as your attorney someone who you trust implicitly (see ‘Who should I appoint as my attorney?’)

AMENDING OR TERMINATING A POWER OF ATTORNEY

Can I amend a Power of Attorney after it has been signed ? How do I do that ?
Provided you have legal capacity, you can amend a Power of Attorney at any time by doing an appropriate amending document. The amending document has to be signed and witnessed in the same way as the original Power of Attorney.

However, it is generally better to terminate a Power of Attorney and do a new one that includes the desired provisions rather than amend it. In that way you avoid the problems that can arise if the original Power of Attorney and the amending document get separated.

Can I terminate a Power of Attorney after it has been signed ? How do I do that ?
Provided you have legal capacity, you can terminate a Power of Attorney at any time by doing an appropriate terminating document and giving notice of the termination to the attorney.

In most cases, the terminating document simply needs to be a signed letter or notice addressed to the attorney. In some cases, however, the terminating document must comply with certain signing and witnessing formalities.

Special considerations apply here to Enduring Powers of Attorney. Unlike a standard Power of Attorney, which is effectively terminated if you become legally incapacitated, an Enduring Power of Attorney will continue operating after you become legally incapacitated. If that happens, you will not be able to terminate your Enduring Power of Attorney unless you regain legal capacity.

You should note that the termination of a Power of Attorney is not legally effective until your attorney receives notice of it. This is to protect both your attorney and any innocent parties who deal with your attorney during the interim period when your attorney is not aware that their authority has been terminated.

Where you terminate a Power of Attorney, you should ask the attorney to return or destroy the original document and any copies of the Power of Attorney they may have.

If your Power of Attorney has been registered at a Land Titles Office, you will also need to register a document terminating the Power of Attorney at that Office. In most jurisdictions, a further registration fee will be payable to the Land Titles Office.

For completeness, we note that it is possible to make an irrevocable Power of Attorney but we do not presently offer that facility as part of our service.

I have already given someone a Power of Attorney to do certain things. I want to replace them with a different attorney. What should I do ?
The best thing to do is to terminate the original Power of Attorney and sign a new one in favour of the replacement attorney.

Remember that you will need to give notice of the termination to your original attorney for the termination to be legally effective.

If the original Power of Attorney has been registered at a Land Titles Office, you will also need to register a document terminating the Power of Attorney at that Office. In most jurisdictions, a further registration fee will be payable to the Land Titles Office.

For further information, see ‘Can I terminate a Power of Attorney after it has been signed? How do I do that?’

CHANGES IN CIRCUMSTANCES

What happens to my Power of Attorney if I die ?
As soon as your attorney becomes aware of your death, your Power of Attorney is effectively terminated. Your attorney will no longer be able to exercise any powers under it.

You should note that the termination of your Power of Attorney is not legally effective until your attorney receives notice of your death. This is to protect both your attorney and any innocent parties who deal with your attorney during the interim period when your attorney is not aware that their authority has been terminated because of your death.

What happens to my Power of Attorney if I become legally incapacitated ?
Unless your Power of Attorney is an Enduring Power of Attorney, as soon as your attorney becomes aware that you have lost legal capacity, your Power of Attorney is effectively terminated. Your attorney will no longer be able to exercise any powers under it.

You should note that the termination of your Power of Attorney is not legally effective until your attorney receives notice of your loss of legal capacity. This is to protect both your attorney and any innocent parties who deal with your attorney during the interim period when your attorney is not aware that their authority has been terminated because of your loss of capacity.

If your Power of Attorney is an Enduring Power of Attorney, it continues to operate even after you become legally incapacitated (that’s the whole point of an Enduring Power of Attorney).

What happens to my Power of Attorney if I become a bankrupt ?
That depends on the State or Territory where you live and what type of Power of Attorney you have.

For example, in the Northern Territory, the bankruptcy of a principal automatically terminates all Powers of Attorney they have granted. In Queensland and Tasmania, it terminates any General or Enduring Power of Attorney they have granted.

Whether or not you are covered by these particular provisions, if you become a bankrupt, your property vests in your official trustee in bankruptcy. A Power of Attorney that authorises your attorney to deal with your property will cease to have any legal effect at that point and your attorney will no longer be able exercise any powers under it in relation to your property.

Under bankruptcy laws, the time at which your property vests in your official trustee in bankruptcy may “relate back” to a time earlier than the order declaring you bankrupt. In that case, any dealings by an attorney with your property in the meantime may be able to be set aside by your official trustee in bankruptcy.

What happens if my attorney dies ?
The appointment of an attorney is a personal one and, unless your Power of Attorney says otherwise, the attorney’s legal personal representative will not be able to exercise the powers it confers.

If your Power of Attorney appointed only one attorney and that attorney dies, the Power of Attorney effectively ends because there is no longer an attorney who can act under it.

If your Power of Attorney appointed a number of attorneys to act at the same time, the effect of the death of one of the attorneys will turn upon whether their appointment is joint (all attorneys must act together) or joint and several (any one of the attorneys can act). If the appointment is joint, the Power of Attorney effectively ends because the attorneys can’t all act. If the appointment is joint and several, the Power of Attorney will continue in favour of the remaining attorney or attorneys.

You can, if you wish, include a provision in certain Powers of Attorney appointing joint attorneys allowing the remaining attorney or attorneys to continue to act after the death of one of them. We give you that option in our services, where it is available.

If your Power of Attorney appointed a number of attorneys to act one after the other, the effect of the death of one of the attorneys will turn upon which one dies. If it is the current attorney, that will trigger the authority of the next available back-up attorney to act. If it is one of the back-up attorneys, that will have no effect on the authority of the current attorney to act.

What happens if my attorney becomes legally incapacitated ?
A person who doesn’t have legal capacity can’t act as the attorney of another person.

If your Power of Attorney appointed only one attorney and that attorney becomes legally incapacitated, the Power of Attorney effectively ends because there is no longer an attorney who can act under it.

If your Power of Attorney appointed a number of attorneys to act at the same time, the effect of a loss of legal capacity by one of the attorneys will turn upon whether their appointment is joint (all attorneys must act together) or joint and several (any one of the attorneys can act). If the appointment is joint, the Power of Attorney effectively ends because the attorneys can’t all act. If the appointment is joint and several, the Power of Attorney will continue in favour of the remaining attorney or attorneys.

You can, if you wish, include a provision in certain Powers of Attorney appointing joint attorneys allowing the remaining attorney or attorneys to continue to act after the loss of legal capacity of one of them. We give you that option in our services, where it is available.

If your Power of Attorney appointed a number of attorneys to act one after the other, the effect of a loss of legal capacity by one of the attorneys will turn upon which one is incapacitated. If it is the current attorney, that will trigger the authority of the next available back-up attorney to act. If it is one of the back-up attorneys, that will have no effect on the authority of the current attorney to act.

What happens if my attorney becomes a bankrupt ?
That depends on the State or Territory where you live and what type of Power of Attorney you have.

For example, under the law of the Australian Capital Territory, the bankruptcy of an attorney terminates any General or Enduring Power of Attorney to the extent that relates to property matters. Under Northern Territory law, it automatically terminates all Powers of Attorney granted in their favour. Under Queensland law, it terminates all non-Enduring Powers of Attorney and any Enduring Power of Attorney to the extent it covers financial matters. Under Victorian law, it terminates any Enduring Power of Attorney – Financial Matters.

At common law, the bankruptcy of an attorney will terminate a Power of Attorney if it affects the capacity of the attorney to perform their duties under it.

Regardless of these laws, if your attorney becomes a bankrupt, you really should consider whether they are the most appropriate person to look after your affairs. If you’re not confident that your Power of Attorney has been terminated by operation of these laws, you should think about whether it would be appropriate to terminate it yourself (see “Can I terminate a Power of Attorney after it has been signed? How do I do that?”).

What happens if my attorney resigns or refuses to act ?
Generally speaking, a person can’t be forced to act as your attorney if they don’t want to.

If your Power of Attorney appointed only one attorney and that attorney resigns or refuses to act, the Power of Attorney effectively ends because there is no longer an attorney who is prepared to act under it.

If your Power of Attorney appointed a number of attorneys to act at the same time, the effect of a resignation or refusal to act by one of the attorneys will turn upon whether their appointment is joint (all attorneys must act together) or joint and several (any one of the attorneys can act). If the appointment is joint, the Power of Attorney effectively ends because the attorneys can’t all act. If the appointment is joint and several, the Power of Attorney will continue in favour of the remaining attorney or attorneys.

You can, if you wish, include a provision in certain Powers of Attorney appointing joint attorneys allowing the remaining attorney or attorneys to continue to act after one of them has resigned or refuses to act. We give you that option in our services, where it is available.

If your Power of Attorney appointed a number of attorneys to act one after the other, the effect of the resignation of one of the attorneys will turn upon which one resigns. If it is the current attorney, that will trigger the authority of the next available back-up attorney to act. If it is one of the back-up attorneys, that will have no effect on the authority of the current attorney to act.

I appointed my spouse/partner as my attorney and we have since separated. How does that affect my Power of Attorney ? What should I do if I want to terminate my spouse/partner’s Power of Attorney ?
The fact that you have separated from your spouse/partner does not of itself terminate your Power of Attorney. If you no longer want them to act as your attorney, you should terminate the Power of Attorney (see “Can I terminate a Power of Attorney after it has been signed? How do I do that?”).

In the Australian Capital Territory or Queensland, if you divorce your spouse, any Enduring Power of Attorney you have given them will automatically be terminated by that divorce.

INTERSTATE AND OVERSEAS RECOGNITION

If I do a Power of Attorney in one State or Territory of Australia, can it be used in other States or Territories ?
That depends on the type of Power of Attorney.

In the Australian Capital Territory, New South Wales, Queensland, Tasmania, Victoria and Western Australia, there is legislation that expressly recognises and validates Powers of Attorney signed in other States and Territories, to the extent that they confer powers on the attorney that could have been conferred under the local law. In the Northern Territory and South Australia, there is no equivalent legislation but the position at common law should still be the same.

In summary, therefore, “standard” Powers of Attorney and Enduring Powers of Attorney – Financial Matters should be recognised across Australia and able to be used in any State or Territory.

Other types of Enduring Powers of Attorney, however, may not be recognised if they confer powers on the attorney that are not capable of being conferred under local law. For example, if you’re an Australian Capital Territory or Queensland resident and you do an Enduring Power of Attorney covering personal/health matters, it may not be recognised in another State or Territory where local residents are not able to do that type of Power of Attorney.

If I do a Power of Attorney in Australia, can it be used outside of Australia ?
That depends on the type of Power of Attorney and the laws of the country involved.

For “standard” Powers of Attorney, the answer is most likely yes, but you really should check with lawyers in the particular country where the Power of Attorney is going to be used whether it will be recognised there and also whether there are any particular local law formalities that need to be followed (eg does it have to be signed or witnessed in a particular way, does it have to be notarised, does it have to be registered under local law etc).

For Enduring Powers of Attorney – Financial Matters, again the answer is most likely yes, but you should check with lawyers in the particular country where the Power of Attorney is going to be used whether it will be recognised there and whether there are any particular local law formalities that need to be followed. You should also check that the local law will recognise the enduring nature of the Power of Attorney and permit the attorney to continue to act if you become incapacitated.

For other types of Enduring Powers of Attorney, there is a real risk that they may not be recognised if they confer powers on the attorney that are not capable of being conferred under local law. For example, an Enduring Power of Attorney – Personal/Health Matters or Enduring Power of Attorney – Medical Treatment may not be recognised in another country where local residents are not able to do that type of Power of Attorney.

For these reasons, it is best to obtain legal advice from a specialist lawyer in the country where your Power of Attorney is going to be used. It may be better to prepare a Power of Attorney under their law rather than rely on one prepared under Australian law.

Please note that James Legal Consultants is only qualified to advise you on Australian law and can’t express an opinion on the laws of another country or prepare a Power of Attorney under foreign law.

I live in the Australian Capital Territory or Queensland. Can I appoint someone who lives outside the ACT/Queensland as my attorney in an Enduring Power of Attorney covering personal/health matters ?
Yes you can, although you need to think carefully about the practicalities of doing this.

If you’re incapacitated and the person responsible for looking after you is living in another State or Territory, it is not going to be easy for them to do that.

If your attorney decides to shift you to where they live so that they are better able to look after you, there is a risk that the authorities where they live may not recognise the validity of an ACT/QLD Enduring Power of Attorney covering personal/health matters. In that circumstance, they may have to apply to the local Board or Tribunal that regulates guardianship matters to be appointed as your legal guardian so that they have the legal authority to look after you in the State or Territory where they live.

I live in South Australia or Victoria. Can I appoint someone who lives outside South Australia/Victoria as my attorney in an Enduring Power of Attorney – Medical Treatment ?
Yes you can, although you need to think carefully about the practicalities of doing this.

If you’re incapacitated and the person responsible for making decisions about your medical treatment is living in another State or Territory, it is not going to be easy for them to do that.

ENDURING ATTORNEYS COMPARED TO ENDURING GUARDIANS

What’s an enduring guardian ?
An enduring guardian is someone you appoint to act on your behalf as your legal guardian in the event you become legally incapacitated.

The guardian can make decisions about personal, health and lifestyle matters for you if you lose the capacity to make those decisions for yourself. This includes where you should live, whether you should work, what sort of medical and dental treatment you should receive and who can visit you.

The guardian is referred to as an “enduring” guardian because their appointment continues after (‘endures’) your loss of legal capacity.

What’s an Appointment of Enduring Guardian ?
An Appointment of Enduring Guardian is a legal document under which a person (the appointer) appoints someone else (the guardian) to be their enduring guardian.

What’s the difference between an Appointment of Enduring Guardian and an Enduring Power of Attorney ?
That depends on what type of Enduring Power of Attorney you are talking about and the State or Territory in which you live.

An Enduring Power of Attorney – Financial Matters – which you can do anywhere in Australia – enables your attorney to make decisions on your behalf about financial matters, but not personal or medical matters.

An Enduring Power of Attorney – Personal/Health Matters – which you can only do in the Australian Capital Territory or Queensland – enables your attorney to make decisions on your behalf about personal/health matters (including medical matters), but not financial matters.

An Enduring Power of Attorney – Combined Financial and Personal/Health Matters – which you can only do in the Australian Capital Territory or Queensland – enables your attorney to make decisions on your behalf about both financial matters and personal/health matters (including medical matters).

An Enduring Power of Attorney – Medical Treatment – which you can only do in South Australia or Victoria – enables your attorney to make decisions on your behalf about medical matters but not financial matters or other personal matters.

An Appointment of Enduring Guardian – which you can only do in New South Wales, South Australia, Tasmania or Victoria – allows your guardian to make decisions on your behalf about personal/health matters (including medical matters) but not financial matters.

In summary, therefore, in New South Wales, South Australia, Tasmania and Victoria, an Appointment of Enduring Guardian performs essentially the same function as an Enduring Power of Attorney that covers personal and health matters does in the Australian Capital Territory and Queensland. Each document authorises the enduring guardian/attorney to make decisions on personal/health matters (including medical matters), if the appointer/principal becomes incapable of doing that for themselves.

If you want to appoint someone who can make decisions on your behalf about the full gamut of financial, personal and medical matters if you become incapacitated:

in New South Wales, South Australia, Tasmania and Victoria, you need to do both an Enduring Power of Attorney – Financial Matters and an Appointment of Enduring Guardian;

in the Australian Capital Territory and Queensland, you simply need to do an Enduring Power of Attorney – Combined Financial and Personal/Health Matters.

The Northern Territory and Western Australia do not recognise the concept of an enduring guardian, nor do they permit an Enduring Power of Attorney that covers personal, health or medical matters. In those places you can only do an Enduring Power of Attorney covering financial matters.

See “When should I use an Appointment of Enduring Guardian and when should I use an Enduring Power of Attorney?”.

When should I use an Appointment of Enduring Guardian and when should I use an Enduring Power of Attorney ?
The table below explains which document you should use for which type of decisions, depending on the State or Territory in which you live:

Key:

AEG: Appointment of Enduring Guardian

EPA – COM: Enduring Power of Attorney – Combined Financial and Personal/Health Matters

EPA – FM: Enduring Power of Attorney – Financial Matters

EPA- MT: Enduring Power of Attorney – Medical Treatment

EPA – PHM: Enduring Power of Attorney – Personal/Health Matters

N/A: Not available

* In the ACT, you can also do an Enduring Power of Attorney that just covers health matters and excludes other personal matters.

As you will see from this table, if you live in New South Wales, South Australia, Tasmania or Victoria, you need to do an Appointment of Enduring Guardian to cover personal and health decisions and an Enduring Power of Attorney – Financial Matters to cover financial matters.

If you live in the Australian Capital Territory or Queensland, you can do an Enduring Power of Attorney that just covers personal and health matters or that covers both financial matters and personal and health matters. You don’t need to, and in fact can’t, appoint an enduring guardian in the Australian Capital Territory or Queensland.

If you live in the Northern Territory or Western Australia, you can do an Enduring Power of Attorney that covers financial matters but you can’t do one that covers personal and health matters. Nor can you appoint an enduring guardian, as the Northern Territory and Western Australia do not recognise this concept.

If you live in South Australia or Victoria, you also have the option of doing an Enduring Power of Attorney – Medical Treatment, that will enable your attorney to make decisions on your behalf about what sort of medical treatment you should receive and whether medical treatment (including life support) should be withheld or withdrawn if you are not able to make those decisions for yourself.

If you live in South Australia, you have the further option of signing an Anticipatory Direction stating in advance your decisions about the type of medical treatment you should or should not receive. The specific directions you give in the Anticipatory Direction will be binding upon any attorney you appoint under an Enduring Power of Attorney – Medical Treatment.

Similarly, if you live in Queensland, you have the option of signing an Advance Health Directive stating in advance your decisions about the type of medical treatment you should or should not receive. The specific directions you give in the Advance Health Directive will be binding upon any attorney you appoint under an Enduring Power of Attorney covering personal and health matters.

1 Registration of a Power of Attorney at the Land Titles Office in Victoria is only required where there are large numbers of regular dealings in Victorian land. Otherwise, you simply lodge a copy of the Power of Attorney that has been certified in accordance with section 111 of the Instruments Act 1958 (Vic) with the relevant land dealing when it is lodged for registration.

For professional assistance with Enforcement of Agreements, please contact James Legal Consultants using the Contact Us link above.