Taxation & Estate Planning
Enduring powers of attorney
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Most people have come across enduring powers of attorney (EPA), but there is still uncertainty around what an attorney can and cannot do.

An EPA is a legal document that allows a person (which may be referred to as principal, appointor, donor) to appoint a person or persons to deal with the principal's affairs. The word 'enduring' means that the appointment remains operative even if the principal loses decision-making capacity after signing the document.

An EPA is the most common type of power of attorney. Other types are a general power of attorney which ceases if the principal loses decision-making capacity, and a corporate power of attorney which allows companies to nominate an attorney.

EPAs are subject to state law. The forms and how an EPA must be signed and who can witness differ between the states and territories.

In some states and territories, an EPA only refers to the principal's property/financial matters (for example, NSW). In other states, an EPA may refer to property matters, personal care matters and health care matters (for example, Queensland and the ACT).

A personal care/health care EPA might have a different name in some states and territories. For example, in NSW the document is known as 'appointment of enduring guardian' and in Western Australia as 'enduring power of guardianship'.

In Victoria, a principal can make an EPA which addresses financial and personal care matters, but there is a separate document for medical affairs, being an appointment of medical decision maker.

When do powers of an attorney commence?

In relation to personal care and health care/medical matters, an attorney's powers only commence if the principal no longer has decision-making capacity. The attorney must provide sufficient evidence in this regard, which may include a medical certificate of the principal's treating doctor or of a specialist in this area of medicine, or more of than one medical practitioner.

In relation to financial matters, the principal can allow the attorney to act immediately upon both the principal and the attorney signing the document, or may also only allow the attorney to act should the principal no longer have decision-making capacity.

There is no right or wrong decision in this regard, but it is simply for the principal to answer when they wish the powers to commence.

To allow an attorney to act immediately may be useful if the principal spends a lot of time overseas or while mentally capable, may be unwell physically.

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