Power of Attorney is the legal power to make decisions on someone else’s behalf. Enduring simply means that the power continues even if the person giving it loses their capacity to make decisions. A nominated attorney may be given the power to make decisions about personal, health and/or financial matters. This power may be given for a temporary period, for situations such as travelling or living overseas or given as a permanent measure due to illness or if the circumstances arise where a loved one lacks the capacity to act for themselves.
Powers of Attorney cannot make decisions about your will, consent to adoption or marriage on your behalf or vote for you at an election.
Neither can they decide on organ or body donation, sterilisation, pregnancy termination or research or experimental health care or certain psychiatric or other health care as specified in the regulations.
They can however consent to the withdrawal or withholding of life-sustaining medical treatment if someone becomes terminally ill or falls into a state of permanent or persistent unconsciousness. Instructions can be documented regarding any wishes in these circumstances by completing an Advance Health Directive as previously discussed. These instructions will override any decision of your attorney.
An Attorney’s powers can be limited by specific instructions and by legislation and one or more attorneys may be appointed to act jointly, as a majority, severally or successively. If one attorney dies, then the remaining attorneys exercise the power.
An Attorney should be someone trusted, such as your spouse, an adult child or another family member or friend with or without expertise in this area. The Adult Guardian or Public Trustee may also be appointed to act on your behalf. The Attorney must be over eighteen years of age, must not be a bankrupt or insolvent or your current paid carer or health care provider. The term ‘paid carer’ does not refer to someone receiving a carer’s pension to look after you but to a nurse or employee specifically engaged for this purpose.
With personal or health matters, an attorney’s powers to make decisions begins when you are incapable of understanding the nature and foreseeing the effects of a decision and of communicating that decision. It continues as long as you remain incapable of these actions.
With financial matters, you may nominate when the attorney’s power begins, but if you lose the capacity to make such decisions before the nominated time, then the power begins at that point. It continues until it is revoked.
Attorneys are legally accountable for their decisions and actions and they may be changed, or their powers revoked at any time as long as you are capable of understanding what you are doing and are deemed to have the capacity to do so. Similarly, a nominated Power of Attorney may decline the responsibility or withdraw by tendering a signed notice or asking the Court’s leave to withdraw.
In the situation of marriage or divorce, it may affect the Power of Attorney, especially if the new or previous spouse was nominated as an attorney for you. Your Enduring Power of Attorney is revoked in its entirety upon death.