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The Role of Attorney under Enduring Power of Attorney in Australia

The role of attorney under Enduring Power of Attorney in Australia is different from a General Power of Attorney. Understanding what power your attorney has is important before choosing someone or being an attorney for a loved one.

What is Power of Attorney?

A Power of Attorney is a legal document that gives a person or trustee the legal authority to manage and make decisions on your behalf regarding your personal affairs. There are two types of Power of Attorney documents: enduring and general power of attorney.

What is Enduring Power of Attorney?

An enduring power of attorney is a legal document that allows you to appoint one or more persons to act on your behalf. These persons are also known as attorneys. You can choose someone you know or a public trustee. Either way, they carry the same responsibility.

Unlike a general power of attorney that specifics a time or event when the attorney will make decisions on your behalf, enduring power of attorney allows the attorney to continue to make decisions on your behalf after you lose mental capacity.

What can an attorney do under EPOA?

The main difference between an enduring and general power of attorney is that enduring power of attorney continues if you lose mental capacity. For example, if you have an accident and lose mental capacity, your attorney can continue to make decisions on your behalf.

For this reason, you must choose an enduring power of attorney you trust. The role and responsibilities of an attorney carry significant power when it comes to making decisions on your behalf regarding your financial and legal matters.

Should you choose to impose any limits on what they can do in your will, your attorney can generally do all things that relate to your financial and legal matters. For example, your attorney can sell, lease or mortgage your house, sell shares and deal with your bank accounts.

With that said, your attorney can’t make personal decisions about your health and lifestyle. These decisions are the responsibility of your guardian. To appoint an enduring guardian is to go through a different process.

General Principles an Attorney must follow

To avoid elder abuse and taking advantage of attorney power, the General Principles and the Health Care Principleprovide a set of rules that each attorney must follow when acting or making a decision on behalf of someone else.

These general principles protect the rights of an adult with impaired capacity and include some of the following points:

  • Everyone is presumed to have the capacity for a decision until proven otherwise
  • Everyone has the same basic human rights regardless of their capacity
  • The person’s human worth and dignity must be recognised and respected
  • Recognising the person’s right to confidentiality

Cancelling a Power of Attorney

If you have appointed someone as your power of attorney, you can revoke this decision, making them no longer authorised to act on your behalf regarding legal and financial matters. You can do this using revocation of power of attorney so long as you have the mental capacity to do so.

Wrap Up

The power of an enduring power of attorney carries a lot of weight. Therefore it’s crucial to understand the role of attorney under an EPOA, what they can’t do and the general principles they must follow regardless of the situation.

Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.

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