Considerations as to who to appoint as your Attorney in your Enduring Powers of Attorney

Deciding who to appoint as your Attorney in your Enduring Powers of Attorney (EPOAs) is not a simple decision. Legislation changes made some years ago relating to EPOAs, in order to prevent abuse of EPOAs, mean that those creating an EPOA (Donors) can be far more specific about what they want in their EPOA.

You can appoint whoever you choose as an Attorney.  It does not have to be a family member, for example.

The Donor can choose:

• Whether a Property EPOA will be able to be used when they are mentally incapable, or while they are capable (to continue if they become mentally incapable);
• In relation to a Property EPOA, whether to appoint one or two (or more) attorneys and whether they can act alone, or whether they must make joint decisions;
• Whether to limit the property the Attorney can deal with (e.g. only real estate, only in relation to certain medical matters);
• Whether to put in any conditions or restrictions on the Attorney;
• Whether the Attorney must consult a particular person about your affairs or medical matters (depending on the type of EPOA);
• Whether the Attorney must provide information to anyone in particular;
• In relation to a Property EPOA, whether the Attorney can make a new Will for the Donor;
• Whether the Attorney can benefit themselves (payments, gifts); and
• Instructions on who is to be involved in assessing your capacity.

A Personal Care and Welfare EPOA only operates if the Donor is “mentally incapable”.  An assessment of whether the Donor is mentally incapable needs to be done by a suitably qualified medical practitioner and needs to be confirmed in a specific certificate.

Ensuring your Attorney meets the criteria is also important. The Attorney must:

• Be over 20 years old;
• Not be bankrupt;
• 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, we always recommend seeking independent legal advice before deciding to put in place an EPOA.