Choosing the right power of attorney
Choosing the right powers of attorney and the right people to appoint is important.
Powers of attorney are legal documents that let someone appoint another person who can make decisions for them (appoint substitute decision makers) or who can support them make and give effect to their own decisions. The decisions of a substitute decision maker will have the same legal force as if the person who appointed them had made them.
Enduring powers can be used to plan for the future. ‘Enduring’ means the power continues (endures) even when a person can’t make decisions for themselves due to accident or illness (either temporary or permanent).
The general non-enduring power of attorney is mostly used for a specific purpose and a fixed period of time. It is not enduring.
Supportive attorney appointments are about promoting autonomy and dignity for a person who is able to make various decisions, provided they have support to make and act on their decisions.
Anyone who is 18 years of age or older and has the legal capacity to make the appointment can make a power of attorney for themselves. No one else can make a power of attorney on behalf of another person.
Important decisions to make
General non-enduring power
A general non-enduring power of attorney appointment is usually made when a person:
- is unavailable for a period of time and
- wants someone else to make financial decisions for them during this time.
For example, when someone travels overseas and needs another person to take care of their property and finances while away. A general non-enduring power of attorney is not for future planning. It does not continue (endure) to include when the person who made the appointment does not have capacity to make decisions about financial matters.
Supportive attorney appointments are about promoting autonomy and dignity for a person who is able to make various decisions themselves, provided they have support to make and act on those decisions. Anyone 18 years of age or older with decision making capacity to make the appointment can make a supportive attorney appointment. However, the main aim of supportive attorney appointments is to promote the rights of people with disabilities.
People with disabilities have:
- the right to be recognised as people before the law
- the right to enjoy legal capacity on an equal basis with others and
- the right to the support and assistance necessary to exercise legal capacity.
Making choices and decisions is an important part of exercising legal capacity.
There can be many reasons why people feel they would like support to make and give effect to their decisions. For example, a person with a physical disability, a person who has experienced trauma, a person who has a mental illness or a person who has an intellectual disability may sometimes want this support.
A person who makes a supportive attorney appointment gives power to the person they appoint to access information from third parties (such as hospitals, banks and utility providers), to communicate their decisions and to give effect to (act on) their decisions.
Enduring powers can be used to plan ahead. They can give the appointed substitute decision maker the authority to act when the person who appointed them ceases to have capacity to make their own decisions about matters.
Capacity to make decisions may be lost permanently, or temporarily by becoming unconscious as a result of an illness or accident.
By making enduring powers of attorney, a person can choose who will make decisions for them is they are unable to do so in the future.
There are two enduring powers of attorney:
- enduring power of attorney
- enduring power of attorney (medical treatment)
Enduring power of attorney
A person who makes an enduring power of attorney appoints a person (or people) to make decisions about:
- financial matters, including any legal matters that relate to financial or property affairs
- personal matters, such as where a person lives and health care matters or
- both financial and personal matters.
The person making the appointment decides whether to give the power for all financial, all personal matters or for only some financial or personal matters. They can also limit or place conditions on the power of their attorney (or attorneys).
Medical enduring power of attorney
For clarity OPA uses the term 'medical enduring power of attorney' here for the enduring power of attorney (medical treatment).
When a person makes a medical enduring power of attorney they appoint a medical agent who can decide whether to consent to medical or dental tratment, and can refuse medical treatment on their behalf. The medical agent can only act if the person is unable to make their own decisions about medical or dental treatment.
The decisions of the medical agent about whether to consent to medical or dental treatment take precedence over the decisions of an attorney appointed for personal matters, or an enduring guardian with health care powers, who also has the power to consent to this.
If it is important to a person that there is someone who can refuse medical treatment on their behalf then the peson should make a medical enduring power of attorney.
Use the left menu to see further information about each of the powers of attorney. This includes information about the role and responsibilities of those appointed under the different powers and the role of witnesses.
Choosing who to appoint is an important decision.
With a supportive attorney appointment, a person appointed as a supportive attorney can deal directly with organisations and may have access to the finances of the person who appointed them.
Enduring powers of attorney
With an enduring power, when a person does not have decision making capacity to change or cancel the appointment, the person who they have appointed as their substitute decision maker will have the authority to make decisions for them.
Many people choose their life partner or adult child. Others prefer another family member, a friend with expertise in the area, an accountant, a lawyer, or a trustee company. It’s important to be confident that the person or agency is able and willing to take on the responsibility.
Whoever is appointed must be 18 years or older and have the required decision making capacity.
People will think different things are important when choosing a person to appoint. For example, some people don’t want the person they appoint to upset the rest of the family. Others want to ensure that the person they appoint can talk effectively with doctors and lawyers.