It is important to consider making an Enduring Power of Attorney in case you lose capacity in the future to make independent and informed financial decisions.
An Enduring Power of Attorney can be made by anyone over the age of 18, who has full legal capacity.
'Full legal capacity' means that the person must be able to make a formal agreement and understand the implications of statements contained in that agreement. In respect to an Enduring Power of Attorney the person must be able to understand the nature and effect of the document they are completing and the nature and extent of their estate.
An Enduring Power of Attorney cannot be made by another person on behalf of someone whose capacity might be in doubt due to mental illness, acquired brain injury, cognitive impairment or dementia.
The benefit of an Enduring Power of Attorney is that unlike an ordinary power of attorney, it will continue to operate even if the donor loses full legal capacity.
A person may make an Enduring Power of Attorney that is either:
- Effective immediately, and continues to be effective if the person loses legal capacity, (called an "Immediate Enduring Power of Attorney"), or
- Effective only during any period when the State Administrative Tribunal declares that the person does not have legal capacity (called a "Dormant Enduring Power of Attorney").
An Enduring Power of Attorney does not permit an attorney to make personal and lifestyle decisions, including decisions about treatment and medical research. The authority of the attorney is limited to decisions about the donor's property and financial affairs. Should you wish to give authority to a person/s to make personal, lifestyle, treatment and medical research decisions on your behalf, you should consider making an Enduring Power of Guardianship.
To cancel an Enduring Power of Attorney, the person who made it must have full legal capacity. The revocation should be made in writing. If the person has lost capacity, an application can be made to the State Administrative Tribunal to decide if the Enduring Power of Attorney should be cancelled.
You can obtain more information about Enduring Powers of Attorney, as well as information about Enduring Powers of Guardianship and Advance Health Directives, at the Office of the Public Advocate.