The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

What are Enduring Powers of Attorney?

What are Enduring Powers of Attorney?

Since a legislation change in 2015, there are now two types of Enduring Powers of Attorney (EPAs) that can be created.

Financial & Personal Enduring Power of Attorney

This document allows your Attorney to assist with day to day tasks involving a financial transaction, which may involve:

  • Banking
  • Paying bills
  • Buying or selling property or other assets
  • Paying for accommodation needs such as nursing home or hospital fees

Once created, the financial side of the EPA comes into effect immediately. Although you may have the capacity to make your own decisions, it might be easier for your Attorney to assist you. For example, you might be overseas and need something signed at home, or you have broken your wrist and physically can’t sign. If you still have capacity, financial transactions can only be made in accordance with your expressed directions. Alternatively, if you do not have capacity, transactions can only be made if they are in your best interests.

The legislation change in 2015 saw the previously separate "Guardianship" EPA incorporated into the Financial and Personal EPA. The personal side of this document allows your Attorney to make decisions such as:

  • Where you live (this may involve selecting alternative accommodation, such as a nursing home or retirement village)
  • Who you live with
  • Whether you should be permitted to work
  • Whether you should give gifts to friends or family
  • Restricting visitors (if in your best interest)

There are of course risks associated with a Financial & Personal EPA. You’re entrusting your Attorney with significant responsibilities; therefore it is important to think carefully about the correct person/s to appoint. You can appoint more than one person, and elect that they either be appointed jointly, jointly and severally (meaning either one of the Attorneys can sign), or appoint that the majority have to sign. Alternatively you might appoint one person in the first instance, and then elect a back-up Attorney.

Medical Treatment Enduring Power of Attorney

A medical treatment enduring power of attorney gives your medical Agent the ability to either consent or deny to medical treatment on your behalf, providing you don’t have capacity to make that decision yourself. This might either be a temporary situation, such as being unconscious, or more permanent, such as lacking mental capacity.

Your medical Agent has a significant responsibility, in what may be a very emotional and distressing situation, therefore it is important to have a discussion with your Agent about your wishes should they ever have to make medical decisions on your behalf.

Madeleine Vear is a lawyer in the Will & Powers of Attorney team at O’Farrell Robertson McMahon lawyers. You should give Madeleine a call to discuss your powers of attorney 03 5445 1063.