Power of Attorney / Power of Guardianship

Wills & Probate

A Power of Attorney enables you to appoint someone (called an “attorney”) to step into your shoes to act on your behalf. There are different types of Power of Attorney.

General Non Enduring Power of Attorney

This document enables you to appoint one or more attorneys to act on your behalf regarding financial matters for a specified period of time. For example, you are going overseas and want to appoint someone to help you run a business in Australia while you are away.

You can revoke the power of attorney at any time. The power of attorney ends on the date you specify in the document, or when you cancel or change the power of attorney, if you pass away or if you permanently lose your decision-making capacity.

Enduring Power of Attorney/ Enduring Power of Guardianship

If you are 18 years or older, you can plan for your future by appointing someone you trust (called “attorneys/ guardians”) to make decisions regarding your financial (such as paying bills), medical (such as the treatment you have) or personal matters (such as where you live).

Depending on the law of the State/Territory where you live and what you need, you may require an Enduring Power of Attorney and/or an Enduring Power of Guardianship.

  • In Victoria, an enduring power of attorney (EPA) is a legal document that lets you appoint someone as your attorney to make decisions about personal matters (such as where you live) or financial matters (such as paying bills) or both. Your attorney cannot make medical treatment decisions for you unless they are also your medical treatment decision maker.
  • In Western Australia, an enduring power of guardianship (EPG) lets you appoint a person as your guardian to make decisions about things such as where you live, the support services you have access to and the medical treatment you receive. An enduring guardian cannot be authorised to make property or financial decisions on your behalf. You will also need an enduring power of attorney to appoint a person or organisation to make financial and/or property decisions on your behalf. If you make an Advance Health Directive, this will take priority over the decisions of your enduring guardian for the treatment stated in the EPG.

Alternatively, if a person does not have appropriate and valid legal documents dealing with such matters, and is no longer able to make sensible decisions about their finances or lifestyle, or is doing things that are not in their best interests, it may be possible for a government authority to appoint an attorney/ guardian to make such decisions.

  • In Western Australia, the State Administrative Tribunal (the SAT) can appoint a guardian or administrator (or both). The guardian will make decisions regarding a person’s health, lifestyle, legal affairs and wellbeing (such as where they should live, who they should live with, what work or education they should be involved in, who they spend time or communicate with, and what medical treatment they should receive), while and administrator will have the power to deal with a person’s financial affairs and property.
  • In Victoria, the Victorian Civil and Administrative Tribunal (VCAT) can appoint someone to make the decision, such as the Public Advocate or a trustee company.

If you choose to appoint an administrator/ guardian, you can specify what matters are covered by the power, when the power starts and revoke (cancel) the power at any time (while you still have capacity to make a decision). Unlike the general non-enduring Power of Attorney, the enduring power of attorney continues to operate when you become incapable of making your own decision.

The Enduring Power of Attorney ends if:

  • You revoke the power, while you still have capacity to do so;
  • You make a later Enduring Power of Attorney (unless you specify that the earlier one is not cancelled);
  • The power is cancelled by the relevant government authority in charge of these matters in your State/Territory; or
  • You pass away.

Please contact our lawyers in Perth and Melbourne if you would like to know more about or require assistance with power of attorney and/or guardianship matters.

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