What happens if you suddenly fall ill and are no longer able to make decisions about your healthcare or welfare?  What about if you are overseas and decisions need to be made about your assets?

Recently clients of the firm had entered into a contract for the sale of their property.  Shortly before settlement the wife had to travel urgently as her mother had taken seriously ill.  The wife was unavailable to sign the transfer documents.  The purchasers didn’t want to delay settlement as the removal truck was already packed and their purchasers down the line would also be affected.  Legal costs and mortgage penalty payments could have started to mount.  Thankfully, an Enduring Power of Attorney was in place and the wife’s nominated attorney was able to sign the transfer and settlement went ahead.

What it is an Enduring Power of Attorney?

Quite simply, an Enduring Power of Attorney (EPOA) nominates someone you trust to look after your affairs if you are unable to do so yourself.

Are there different types?

Yes, there are two types of Enduring Powers of Attorney; both of them are important, the distinction between them is crucial.


A Property EPOA allows for the management of your property at times when you are either incapacitated or unavailable. Your property includes your bank accounts, assets and financial liabilities.  A Property EPOA not only provides your attorney with the ability to sign documentation on your behalf, but also to access important but private information and simply pay bills on your behalf.  You can also set out expressly the ambits of your attorney’s powers.

The situations that can and do arise are varied.  A Property EPOA is often the most effective way of managing your affairs from abroad and should always be checked off the ‘things to do list before I leave’ of anyone travelling overseas.

Personal Care and Welfare EPOA

A Personal Care and Welfare EPOA allows you to nominate someone to make important decisions about your health care and welfare, when you are mentally unable to arrange and/or understand such decisions.  The document is imperative in allowing a family member to care for your personal needs, including decisions about rest home care, medical and personal care and not leaving such decisions to the Family Court.

The Personal Care and Welfare EPOA is only activated on your mental incapacity and does not allow your attorney to make any decisions in relation to your marital status or give permission for any radical or experimental treatment, and your attorney cannot refuse standard medical treatment for you; they are designed to protect your well being.

Can I have more than one attorney?

Yes, Property EPOAs can provide for one or more attorneys to act either alone or together and/or a substitute attorney failing the availability of your primary attorney.  You can only have one attorney for Personal Care and Welfare, but can have a back up attorney if that attorney passes away.

This can be very important as a recent case we were involved in shows.  An application had to be made to the Family Court for the appointment of a Property and Welfare Guardian to provide a substitute for the existing attorney who had passed away suddenly.  Without a substitute, no one was able to gain access to our elderly and infirm client’s funds to simply purchase essential items for her comfort not provided by the rest care facility she was in.  The application was successful but involved significant expense.  This could have been avoided if a substitute attorney was appointed from the outset.

So who should I choose as my attorney?

Your attorney should be someone you trust, who has the time, skill and judgement to manage your affairs.  A close family member, usually a spouse, parent or child is the preferred welfare attorney; someone who knows you and your likely wishes well.  On the other hand, in relation to your property, someone with an understanding of how financial and property matters operate is essential.  Different people can be appointed in the Property and Personal Care and Welfare roles.  An EPOA can be withdrawn at any time, provided you are medically capable, and should be in place as a precautionary measure for life’s “what ifs”.

What should I do now?

We recommend that Enduring Powers of Attorney be completed by everyone over the age of 18 at the same time you complete a will or if you are heading overseas. I f you do not yet have Enduring Powers of Attorney, we suggest you contact us to discuss your needs and arrange a quick appointment.