Enduring Powers of Attorney are legal documents allowing someone else – called your Attorney - to act on your behalf in a situation where you are unable to manage your own affairs.

Deciding who to appoint as your Attorney in your Enduring Powers of Attorney (EPOAs) can be a difficult decision, as the powers you are giving that person (or persons) are quite extensive.

There are two different types of EPOA:

1. Property; and
2. Personal Care and Welfare (medical). 

We explain these further below.

EPOA as to Property

An EPOA as to Property allows the Attorney to make decisions and sign documents relating to any assets you own in your own name.  This will include your house, bank accounts and other investments.

When creating an EPOA as to Property, the Donor can choose whether:

• The document will be able to be used only if they were to become mentally incapable, or will be able to be used while they are still capable (to continue if they become mentally incapable);
• To appoint one, two, or more Attorneys and whether those Attorneys can act alone, or whether they must make joint decisions;
• To limit the property the Attorney can deal with (e.g. only real estate);
• To put in any conditions or restrictions on the Attorney;
• The Attorney must provide information to anyone else about the decisions they are making, if they request it (e.g. your other children if you are only appointing one of your children);
• The Attorney must consult anyone else about your affairs (e.g. your other children if you are only appointing one of your children);
• Any instructions as to who is to be involved in assessing your capacity;
• The Attorney can make a new Will for the Donor;
• To appoint a successor (back up) attorney if the first Attorney or Attorneys cannot act; and
• The Attorney can benefit themselves (payments, gifts).

EPOA as to Personal Care and Welfare

An EPOA as to Personal Care and Welfare allows the Attorney to make decisions about matters relating to your personal care, including medical decisions and decisions about where you will live, if you have lost capacity.

You can only appoint one person to be your Attorney for Personal Care and Welfare.

Importantly, an EPOA as to Personal Care and Welfare only comes into effect if the Donor is “mentally incapable”.  An assessment of whether the Donor is mentally incapable needs to be carried out by a suitably qualified medical practitioner and needs to be confirmed in a specific certificate.

When considering an EPOA as to Personal Care and Welfare, the Donor can choose whether:

• The Attorney must provide information to anyone else about the decisions they are making, if they request it (e.g. your other children if you are only appointing one of your children);
• Whether the Attorney must consult anyone else about your medical matters (e.g. your other children if you are appointing only one child);
• To put in any conditions or restrictions on the Attorney;
• To appoint a successor (back up) attorney if the first attorney cannot act;
• To limit the matters the Attorney can deal with (e.g. only in relation to certain medical matters); and
• Any instructions on who is to be involved in assessing your capacity.

Who to appoint

The decision as to who your Attorney should be is completely yours.  You can appoint whoever you like as an Attorney.  It does not have to be a family member, but often it will be.

Ensuring your Attorney meets the following criteria is also important:

• Must be over 20 years old;
• Must not be bankrupt;
• Must be mentally capable.

Practically, we also recommend that the Attorney has good decision-making skills and is someone who can exercise good judgement. 

You should also consider the Attorney’s relationship with those with whom you have said they should consult or provide information to, as they will likely need to be involved with those people fairly frequently if you were to lose capacity.

To make sure that your EPOA puts your best interests forward, it is recommended that you seek independent legal advice before deciding to put in place an EPOA.