General Power of Attorney
Limits on powers can be specified. If they are not, an attorney can make any financial or legal decisions on the donor’s behalf until the power is changed, cancelled or the donor loses capacity or dies.
Enduring Power of Attorney (Financial)
The date the power is activated and the responsibilities given to the donor or donors can be specified. For example, the Enduring Power of Attorney can be drafted so that the power may only take effect when capacity is lost and this is verified by medical evidence; and so that the attorney has limits on how they can manage assets. If no limits are specified, then the attorney(s) can make any financial or legal decisions from the date the power begins until it is cancelled or changed.
The attorney has legal obligations, such as to keep their property separate.
More than one attorney can be appointed to act at the same time and the appointment may be joint and several.
This form of power of attorney must be properly witnessed. One witness must be a person authorised to witness statutory declarations.
Who can witness statutory declarations?
See also LPLC Bulletin EPOAs – Witnessing and Certification Issues and Checklist.
Enduring Power of Attorney (Medical Treatment)
The agent appointed under this document has the power to make decisions about medical treatment, including the decision to refuse treatment, only from the date the donor is unable to make such decisions themselves.
The agent has certain responsibilities, such as to make decisions which the donor would have made themselves, so it is important that they are well instructed by the donor and that there is no conflict of interest. The donor may choose to record their instructions for the agent’s reference.
The document may specify an alternative agent in the case that the first agent is unable to act (e.g. if they die, lose capacity or are absent for a period of time).
Enduring Power of Guardianship (also known as appointment of Enduring Guardian)
A guardian’s powers relate to lifestyle matters such as health care, where a donor lives, who they interact with and their activities, and can be limited to powers specified. The powers are only activated when a donor is unable to make their own decisions. Responsibilities include making decisions based on wishes expressed by the donor.
An alternative guardian can be listed in the case that the first guardian is unable to act (e.g. they die, lose capacity or are absent for a period of time).