At Walker Pender, we understand the importance of planning for the future. Power of Attorney is a legal instrument that empowers someone you trust to make decisions on your behalf.
It’s a tool of assurance, providing you peace of mind knowing that your affairs, whether personal, financial, or medical, will be handled with care and professionalism even when you’re unable to do so yourself.
Our General Power of Attorney elevates this assurance further, extending the range of decisions your appointed agent can make. It’s ideal for those moments when broad authority is required, particularly useful in handling complex financial and business matters.
Choosing Walker Pender for these vital services means entrusting your affairs to a team dedicated to understanding your unique needs and protecting your interests. Our expertise and commitment to personalized service make us the ideal partner in safeguarding your future. Let Walker Pender be the reliable cornerstone for peace of mind and security.
In Australia, there are generally two types of Powers of Attorney:
General Power of Attorney: This type allows someone to make financial and legal decisions on your behalf, usually for a specific period or purpose.
For example, you might set up a General Power of Attorney if you will be overseas and need someone to manage your legal affairs in Australia while you’re away. A General Power of Attorney becomes invalid if you lose mental capacity.
Enduring Power of Attorney (EPA): This type allows someone to make financial, personal, and/or health decisions on your behalf.
The critical difference between an EPA and a General Power of Attorney is that an EPA continues even if you lose mental capacity. This means the attorney can continue to make decisions on your behalf if you cannot do so yourself.
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How to Make an Enduring Power of Attorney in Australia?
Making an Enduring Power of Attorney (EPA) in Australia involves several key steps. Remember that the exact requirements can vary from state to state, so you should consult a legal professional in your area to ensure you follow the correct procedure. Here is a general overview:
Decide who you trust to manage your affairs if you cannot do so. This person will have significant power, so choosing someone who is reliable, trustworthy, and understanding of your wishes is essential. You may also select more than one person and specify if they need to make decisions together or if they can act separately.
Determine what decisions you want your attorney(s) to make on your behalf. This can range from broad powers, such as managing all your financial and personal matters, to more limited capabilities, such as only handling certain assets or health decisions.
Each Australian state and territory has its own EPA form. Usually, these forms are found on your state’s public trustees or the Department of Justice’s websites. The form must be filled out in detail, specifying your attorney(s), the powers granted, and when the powers will start (for example, immediately or only once you cannot make decisions yourself).
Once the form is complete, you must sign it before a qualified witness. The witness requirements vary by state, but a person is generally authorised to witness statutory declarations, like a solicitor or justice of the peace. In some states, the attorney(s) must also sign the form indicating they accept the appointment.
Store the original EPA document safely and provide your attorney(s) a copy. Some states also allow or require the EPA to be registered with a government department or office.
Remember, seeking legal advice when creating an EPA is recommended to ensure it accurately reflects your wishes and complies with the law.
Who Should Be Your Attorney-in-Fact?
The eligibility requirements for a person to be assigned as an agent under a Power of Attorney (POA) can vary depending on the jurisdiction, but there are some common criteria that generally need to be met:
- Age: The person must typically be a legal adult. In most places, this means they must be at least 18 years old.
- Mental Competence: The person should be mentally capable of making decisions. This means they understand the responsibilities and implications of being an agent under a POA.
- Trustworthiness: The person should be trustworthy and reliable. They will be making important decisions, potentially about finances, health care, or other personal matters. It’s crucial that they can be trusted to act in the best interest of the principal (the person who is assigning the POA).
- No Conflict of Interest: Ideally, the person should not have a conflict of interest with their duties as an agent. This means their decisions should be made solely for the benefit of the principal, without any personal gain.
- Willingness to Serve: The person must be willing to take on the role and its responsibilities. Being an agent under a POA can be time-consuming and sometimes challenging, so it’s important they agree to the role.
- Ability to Perform Required Duties: Depending on the type of POA, the role may require specific skills or knowledge (e.g., financial acumen for a financial POA).
- Legal Eligibility: In some cases, there may be legal restrictions on who can serve as an agent. For example, someone with a criminal record might be disqualified from being an agent, depending on the nature of their offenses and the laws in the jurisdiction.
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Enduring Power of Attorney: Cost and Cancellation
The cost of making an Enduring Power of Attorney (EPA) in Australia can vary depending on how you create it and whether legal advice is sought. If you complete the process yourself, minimal costs may be involved. Each state and territory provides forms that can be downloaded for free from the public trustee’s website or the Department of Justice’s website.
However, you may need to pay for a Justice of the Peace, solicitor or notary public to witness the document, though many Justices of the Peace offer their services for free.
If you seek legal advice or have a solicitor draft the EPA for you, the cost will depend on the complexity of your affairs and the lawyer’s fees. Generally, you can expect to pay anywhere from AUD $200 to $500, although this varies widely.
Some states also charge a fee to register the EPA with a government department or land title office, mainly if it’s likely used in real estate transactions.
Bear in mind that while it may be an expense, seeking legal advice can help ensure that your EPA is drafted correctly and accurately reflects your wishes, preventing costly disputes or issues in the future. Always ask about the costs involved upfront to avoid any surprises.
Can an Enduring Power of Attorney Be Cancelled in Australia?
Yes, an Enduring Power of Attorney (EPA) can be cancelled or revoked in Australia, provided that the person who made it (the principal) still has decision-making capacity. If the principal cannot understand the effect of the document, they may not be able to revoke it.
The process to cancel an EPA can vary between different states and territories, but generally, the principal would need to:
- Complete a Revocation Form: : These forms are usually found on your state’s public trustees’ or Department of Justice’s websites. The form must be filled out, specifying the EPA you’re revoking.
- Sign and Witness: The revocation form must be signed before a qualified witness, often a solicitor, a justice of the peace, or a public notary.
- Notify the Attorney: You should notify your attorney(s) that you have revoked the EPA. It’s generally a good idea to do this in writing and keep a copy of the notification for your records.
- Register the Revocation: If the EPA was registered with a government department or land titles office, you should also register the revocation.
If you lose capacity, revoking the EPA yourself may not be possible. In such cases, a court or tribunal may be able to revoke the EPA if it’s in your best interests, but this can be a complex process.
Planning for the future can be challenging and emotional for many people. Nonetheless, our experienced professionals are here to make the process as straightforward and seamless as possible. Whether you are drafting a will or power of attorney, we can handle them with care and professionalism.
