What is an Enduring Power of Attorney?

What is an Enduring Power of Attorney?

An enduring power of attorney is a legal document.  It allows you to appoint someone to make decisions on your behalf about: personal matters (i.e. where you live) and/or financial matters (i.e. paying bills or selling property).  The person you appoint to make these decisions is called your ‘attorney’.  The power/s under the Enduring Power of Attorney continue beyond the point that you loose capacity and are no longer able to make decisions.

You can limit the powers and you can choose when the powers should start to operate.

Your attorney cannot make medical treatment decisions for you unless they are also your medical treatment decision maker.  This is a completely separate and stand alone document.

You can make an enduring power of attorney if you are aged 18 years or older and have decision-making capacity to do so.


What is Decision Making Capacity?

You have decision-making capacity if you are able to:

  • understand the information relevant to the decision and the effect of the decision
  • retain that information to the extent necessary to make that decision
  • use or weigh that information as part of the process of making the decision
  • communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

Capacity is decision specific. A person may have capacity for some decisions but not others.

What happens if I don’t make an enduring power of attorney?

If you don’t have an enduring power of attorney and something happens to you:

  • you may not be able to choose who makes decisions on your behalf
  • it can lead to conflict between your family
  • the Victorian Civil and Administrative Tribunal (VCAT) can appoint someone to make decisions for you and it may not be a family member or a friend.  It might be the Public Advocate or a trustee company.

Important: You should only make an enduring power of attorney if you can appoint someone you trust.  You must be confident that this person understands what is important to you, and is willing and able to act on your wishes as far as it is possible to do so.

How to choose an attorney

If you choose to appoint an attorney, it is important you choose the right person or people.  Your attorney will be making very important decisions for you at a vulnerable time in your life.

Therefore, the person you choose needs to be someone you trust to stand in your place and make the decision you would make for yourself if you had capacity.

If you need assistance with making an Enduring Power of Attorney Book a FREE Chat with one of our lawyers to discuss your Estate Planning needs.


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