A husband and wife have been happily married for 25 years. They had not set up Enduring Powers of Attorney as they thought they were ‘too young’ to do so, and had been in good health.

Unfortunately the couple were involved in a car accident. The husband suffered severe head injuries which left him unable to make decisions for himself.  The wife started to have a look at rest home options for him as she could not manage his care herself.

The wife found that she couldn’t complete the admission process in the rest home as she didn’t have an Enduring Power of Attorney for her husband.  She had thought as next of kin she should be able to make decisions for him, but wasn’t aware that this was not the case legally.

When you are incapable of making decisions for yourself, no one automatically has the right to make decisions for you.

Either you have to have appointed the people who you want to make the decisions for you in an Enduring Power of Attorney or, if a doctor has declared you as incapable of making decisions for yourself, and you do not have Enduring Powers of Attorney, your family will have to go to the Family Court to get someone appointed as your property manager and welfare guardian. 

The latter option is much more costly and takes a lot more time for your loved ones. They will also potentially have to go to the Family Court to account for what has been done and seek a court order for major decisions going forward. 

Your property attorney or property manager will be in charge of any decisions relating to your assets.

Your personal care and welfare attorney, or welfare guardian, will make decisions about what treatment you get and where you will live.

For those planning to move into a retirement village, or a rest home, the retirement village will require that you have enduring powers of attorney in place before you move in.  This is partly because they do not want any issues with you paying for your care, or getting decisions made promptly about your care in future.

Giving someone the power to make decisions on your behalf certainly is a big deal, so there are special witnessing requirements for enduring powers of attorney.

Only certain people can be your witness (such as a lawyer or a Registered Legal Executive) and they must go through and explain the forms before you sign, and then sign a certificate saying they explained the forms and you appeared to understand them. There are also requirements for the witness to be independent of the people you are appointing as your attorneys.

Your legal advisor will be able to advise you on what your options are when it comes to creating enduring powers of attorney.


Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Andie Donnelly

Property Lawyer