Power of Attorney

What is an Enduring Power of Attorney?

Although this area is not directly involved with estate planning, this is still a very important topic and should be looked into at the same time as preparing a will.

An enduring power of attorney is a legal agreement giving someone else the power to make personal, health and/or financial decisions on your behalf. Importantly, the power of attorney ceases when the person passes away. 

"Enduring" simply means that the power continues even if you lose the capacity to make the decisions yourself. These decisions include: 

  • Personal matters (including health care); 
  • Financial matters; 
  • Where you live, and with whom; 
  • Day-to-day issues like diet and dress; 
  • The type of health care you will receive; 
  • Doing your banking; 
  • Paying bills; 
  • Deciding how your income should be invested. 

Exactly what powers would the attorney have?

The individual can specify the sorts of decisions that they want the attorney to make. Within those limits, the individual's attorney would have the power to do, on the individual's behalf, anything that the individual could do in relation to either personal , health or financial matters. There is one important exception: your attorney does not have the power to make decisions about "special" personal matters (such as voting), or " special " health matters (such as withdrawing or withholding life – sustaining medical treatment).

What are the attorney's responsibilities? 

A person who accepts a power of attorney has both general and specific responsibilities. Attorneys must exercise the power given to them with honesty and care, and it is an offence not to do so. 

In general, your attorney must: 

  • Encourage self-reliance. An attorney must only make decisions when there is conclusive evidence that an individual is unable to do so; 
  • Recognise your right to confidentiality and dignity; 
  • Take into account your existing supportive relationships, values and culture.

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