In brief - Appoint someone you trust to deal with your matters if you can't
An enduring power of attorney (EPOA) deals with your finances in the event that you lose capacity or are unable to attend to finalising matters personally. Your attorney is able to deal with your assets in the same manner that you deal with them (subject to any directions or limitations). This includes buying and selling real estate or shares, accessing bank accounts and spending money on your behalf.
Unlike a general power of attorney, an EPOA continues to operate in the event that you lose capacity.
Why should you have an enduring power of attorney?
It is important to have an EPOA in place because without it, in the event that you lose capacity, your next of kin would have to make an application to the NSW Civil and Administrative Tribunal (or relevant government body in your state) to obtain a financial management order to deal with your assets. This lengthy and costly process can be avoided if you have the foresight to establish your EPOA in advance.
An EPOA is useful not only in the event that you lose capacity, but also if you travel, are temporarily unavailable or logistically unable to attend to finalising matters personally.
EPOA should be someone you trust and you may want to consider appointing substitute attorneys
We recommend that you arrange for an EPOA to be prepared. You may like to appoint your spouse, accountant, lawyer, business partner or close friend as your attorney in the first instance. We then suggest appointing substitute attorneys in case your primary attorney is unwilling or unable to act.
If you have concerns about appointing one attorney alone to make decisions on your behalf, you can appoint two (or more) attorneys that must act jointly. Additionally, if you have concerns about when the document can be used, you can easily arrange for specific limitations or directions to be placed on your attorney. Having said this, your nominated attorney should be someone whom you trust and believe would make decisions in your best interests.
Important note: NSW has a separate document that deals with health, lifestyle and medical decisions which you can read about in our article "What is an appointment of enduring guardian?". Victoria and Queensland use Powers of Attorney for medical, personal and financial decisions. Processes vary between states.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.