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Enduring Power of Attorney

POWER OF ATTORNEY

There are two types of Power of Attorney – the Enduring Power of Attorney and the General Power of Attorney.

Anyone in business should have a Power of Attorney, particularly if you are the sole operator of a business. If you were to have an accident and was incapacitated, your business may suffer because there is no one to look after it in a legal sense. Although it may be possible to have someone appointed as your guardian or manager under other laws, a Power of Attorney is a quick and economic way of ensuring that your absence does not hinder the administration of your affairs. 

Enduring Power of Attorney (EPOA):

An EPOA allows health, personal and/or financial affairs to be dealt with in the way you wish, even (and particularly) if you lose the capacity to make decisions for yourself. For example, if you suffer a head injury, develop dementia etc. 

Giving someone an Enduring Power of Attorney means that your Attorney will have the power to make decisions in your interest and sign all necessary legal documents. The power begins:

  • for personal/health matters - only when you are incapable of making decisions yourself;
  • for financial matters - you can specify whether the power is to begin immediately, on a particular date or on a particular occasion, such as your incapacity.

Your Attorney can make decisions such as deciding where and with whom you live, or day to day issues including diet and dress, or those relating to basic health care. However, your Attorney can not make decisions relating to special health matters and special personal matters on your behalf, such as making a Will, or making or revoking a Power of Attorney. 

If you were to temporarily or permanently lose capacity to make decisions and did not have an EPOA, the Public Trustee would step in to make financial decisions for you (for a fee) and health matters would be decided by your statutory health Attorney (could be your spouse, a relative or a close friend). Alternatively, your family would need to make an application to the Guardianship & Administrative Tribunal regarding the management of your affairs.

Your Attorney can only act in your best interests and must act with honesty and care and it is an offence not to do so. In relation to your health care, your Attorney must ensure that any decisions made for you contribute to your health and well being and must take into account the advice of your doctor/health care provider

General Power of Attorney:

A General Power of Attorney is given to someone to make financial decisions on your behalf when you are absent, for example, if you are overseas.

The types of decisions your Attorney can make on your behalf are paying bills, doing your banking, undertaking a legal matter in relation to your property and deciding how your income should be invested.

Liability limited by a scheme approved under professional standards legislation

This fact sheet is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

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