Wills, Intestacies, Estates and Funerals

Enduring Powers of Attorney

It is sensible for people of any age to give an enduring power of attorney to a trusted person, such as a partner or child. An enduring power of attorney gives the attorney the power to make decisions on behalf of the person giving the power (the "donor" of the power). We are all familiar with the power of attorney one gives to a trusted person to deal with one's affairs while one is away, perhaps overseas. It gives the attorney the power to get new tenants for the house if necessary, to make necessary repairs to the property (for example replace the water heater) or to pay bills. Enduring powers of attorney are like ordinary powers of attorney, but they are different in one respect: they continue in force after the donor of the power loses capacity.

Enduring powers of attorney are created under statute: the Powers of Attorney Act 2006 (ACT) available from the ACT Government legislation website at www.legislation.act.gov.au/af/2007-52/default.asp.

The enduring power of attorney is designed to enable a person to make sure that a trusted person (the attorney) will be able to act or decide on behalf of the donor if the donor of the power loses the capacity to act or make decisions herself or himself. Under the legislation enduring powers of attorney have three aspects: the power to make property decisions; the power to make personal care decisions and the power to make health care decisions. The property decisions element allows (but does not compel) the donor to give the attorney limited or general power to manage the donor's property. The personal decisions element allows (but does not compel) the donor to give the attorney power to make personal care decisions on behalf of the donor -- decisions such as a move to a nursing home if this level of care becomes necessary. The health care element allows (but does not compel) the donor to give the attorney power to make decisions relating to health care: it allows the donor to say what level or kind of health care and medical treatment is to be given them (or withheld from them). So, for instance, the donor can say whether extreme measures to preserve life are to be maintained, or are to be abandoned at some point.

Enduring powers are valuable between partners as well as spouses, and are very helpful and reassuring to someone caring for a person whose health and capacity are declining drastically, and because they give insights into the wishes and desires of the donor, they are helpful to other close members of the family too.

There are dangers in giving an enduring power of attorney: the attorney is in a position of power which is open to abuse. In Greenland v Baldwin (2006), McMurdo P, Jerrard JA and Helman J, the Court found that a solicitor who had been appointed his client's attorney was in breach of fiduciary obligations to the donor, and had committed professional misconduct by mismanaging the affairs of the donor. See too Ames and Harley, p 34. However, on balance the benefits far outweigh the dangers.

In spite of the fact that added power means added danger, the donor of the enduring power should consider giving the attorney power to act for the benefit other people, including the attorney, as well as the donor. The power to benefit the attorney herself or himself is often needed and reasonable.

The form to be used for an enduring power of attorney is Approved Form AF2007-52 under the Powers of Attorney Act, s 92, available at www.legislation.act.gov.au/af/2007-52/current/pdf/2007-52.pdf. The formal requirements for the enduring power of attorney are strict, and it is suggested that professional advice be sought.