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Enduring power of attorney – some considerations

An enduring authority concerning financial matters

Legislation in each state and territory provides for a person to make ‘enduring’ arrangements about their money and financial affairs, manage their assets, which are written down and set out in a formal legal document.  This is called an enduring power of attorney.  An enduring power of attorney is where you name someone you trust to make certain decisions on your behalf in the event you become incapacitated and are unable to continue to manage your money, assets and financial affairs.  

An enduring power of attorney is a powerful document 

In considering the making of an enduring power of attorney in the personal and family context, a Judge of the New South Wales Supreme Court said the following:

“The central concept is thus one of complete and lasting delegation to a particular  person, albeit with the ability to put an end to the delegation while capacity to do so remains. That concept of empowering another person to act generally in relation to one’s affairs raises two basic questions.

First, is it to my benefit and in my interests to allow another person to have control over the whole of my affairs so that they can act in those affairs in any way in which I could myself act – but with no duty to seek my permission in advance or to tell me after the event, so that they can, if they so decide, do things in my affairs that I would myself wish to do (such as pay my bills and make sure that cheques arriving in the post are put safely into the bank) and also things that I would not choose to do and would not wish to see done – sell my treasured stamp collection; stop the monthly allowance I pay to my grandson; exercise my power as appointor under the family trust and thereby change the children and grandchildren who are to be income beneficiaries; instruct my financial adviser to sell all my blue chip shares and to buy instead collateralised debt obligations in New York; have my dog put down; sell my house; buy a place for me in a nursing home?

Second, is it to my benefit and in my interests that all these things – indeed, everything that I can myself lawfully do – can be done by the particular person who is to be my attorney? Is that person someone who is trustworthy and sufficiently responsible and wise to deal prudently with my affairs and to judge when to seek assistance and advice? The decision is one in which considerations of surrender of personal independence and considerations of trust and confidence play an overwhelmingly predominant role: am I satisfied that I want someone else to be in a position to dictate what happens at all levels of my affairs and in relation to each and every item of my property and that the particular person concerned will act justly and wisely in making decisions?”1

An enduring power of attorney is an important legal document, which authorises another person or persons with considerable power.  Everyone’s needs and circumstances are different and professional legal advice tailored to personal circumstances should always be sought when contemplating making such  arrangements.

When does a power of attorney end?

When the principal (or the person who gave the power) dies, the power of attorney ends, and the person no longer has authority to act as attorney. There is an exception if there was an irrevocable power of attorney in place, but this would be in special circumstances and legal advice should be sought.

If the attorney dies, the power of attorney ends, at least for that attorney, in the case where other people were also appointed as attorneys in the same document.  If there was no other attorney appointed then the position becomes vacant.

An enduring power of attorney can be revoked or changed

The law allows for a person who made an enduring power of attorney to change it or revoke (cancel) it at any time.  Providing they have decision-making capacity to do so. Attorneys need to keep in mind that a power of attorney is not a power over the person who gave it (the donor, the principal). 

Where to find information and forms on enduring powers of attorney

Websites of the state and territory Law Societies have summary information and contacts of lawyers and law firms providing services in this area.

The  Powers of Attorney webpage of the Australian Government https://australia.gov.au contains links to enduring power of attorney information provided by each state and territory.

State and territory offices dealing with enduring powers of attorney provide information and services as listed below:

Further links to information and prescribed forms for a power of attorney can be found under power of attorney, here.


1.  Per Barrett J, Szozda v Szozda [2010] NSWSC 804, at 34, emphasis added.

BHS Legal
Updated 2 May 2021.

Important notice: This article is intended for general interest and information only. It is not legal advice and nor should it be used as such. Always consult a legal practitioner for specialist advice specific to your needs and circumstances and rely on that.

© BHS Legal

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Kerang Courthouse, Victoria, Image: B Stead.

 

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