Enduring Power of Attorney: What you need to know

  • Winter 2019
  • Advocacy

Geoff Rowe, CEO of National Elder Abuse Conference co-host Aged and Disability Advocacy Australia explains.

An Enduring Power of Attorney (EPOA) is a legal document that thousands of Australians have arranged to allow someone else to make decisions about their health and finances, if they are unable to do so. While an EPOA is a legal document, you don’t have to be a legal expert to understand how it works. The most important take-away to remember is that the attorney should always be making decisions that the person would be making, if they could. 

If you are creating your EPOA, or acting as an attorney for someone else, remember that all decisions must make the person’s life better. A loss of capacity does not mean a loss of respect—we should all feel happy, safe and respected as we grow older.

Here are a number of other key points you should know.

If you are creating your EPOA, or acting as an attorney for someone else, remember that all decisions must make the person's life better. A loss of capacity does not mean a loss of respect - we should all feel happy, safe and respected as we grow older.

Special considerations can be include

An EPOA isn’t—and shouldn’t be—a one-size-fits-all document. Every individual will have different needs and circumstances, and their EPOA should reflect this. There are sections which can be used to set specific terms or rules. For example, you may want to request that your attorney manages your investments in line with your financial planner’s advice.

Retaining some independence is the goal 

While an EPOA gives a significant amount of power to the attorney, it should not be seen as a license to control all of the person’s decisions. They should be kept updated about all decisions made by the attorney and encouraged to maintain control over as many areas of their life as possible. The attorney can be appointed to make financial decisions, personal and medical decisions or both. Guidance from the person’s doctor is important here to understand which types of decisions they can make.

Transparency is a necessity 

Unfortunately, the topic of finances can easily spark conflict and disagreements within families. To follow the rules and to reduce the chances of conflict and easily resolve any misunderstandings, attorneys should always keep an accurate, up-to-date record of all decisions and transactions that they make. Attorneys may also want to consider seeking advice from an unbiased third party, such as a lawyer, accountant or financial planner, if struggling to make a decision.

Help is there if you need it

Taking on the role of an attorney can be a huge responsibility for one person to shoulder. If you have been nominated as an attorney, consider accessing information through non-profit organisations like ADA Australia or The Public Trustee in your State or Territory. They can help you better understand the responsibilities of your role and ensure that you are acting appropriately. It’s also worth keeping in mind that EPOA documents can allow you to nominate multiple people (e.g. two siblings) as joint attorneys.

Act as though you are the person when making decisions

Ultimately, the role of an attorney is to make the same decisions that the person would make if they had decision-making capacity. Therefore, attorneys should first and foremost consider the person’s preferences and views, rather than only consider what they think is the right choice. This means it is important to include cultural, personal and religious beliefs. For example, while an attorney may consider a monthly donation to a charity or church to be a waste of money, if the person is a life-long supporter of the organisation and feels passionately about the cause, the attorney must respect this and should continue these donations.

There can be consequences

As an attorney, you may misunderstand your role. Many attorneys are not aware that their decision-making can be scrutinised by third parties, such as health professionals, service providers and other family members. These third parties may be so concerned about your conduct as an attorney that they seek to have your role reviewed by an independent Tribunal or Board. This is why it is necessary to keep records, be able to explain large or unusual purchases and consult with key people in the principal’s life about the decisions you are making.

Keep in mind that while there are similarities of EPOAs regardless of where you are living in Australia, specific rules may vary from state to state. National Seniors Australia has campaigned for the creation of nationally consistent Powers of Attorney legislation and a single national register for these documents to better protect older Australians from financial abuse. The Federal Government has stated their plans to make these guidelines consistent across Australia, so be aware that changes may be on the way.