What is an Enduring Power of Attorney?

>An Enduring Power of Attorney is a more comprehensive assignment with more diverse authority than a General Power of Attorney. Unlike a general power of attorney, the authority of an Enduring Power of Attorney continues in the event the principal loses the ability to make decisions for themselves. An Enduring Power of Attorney allows the representative to assign the authority to make financial, personal and health decisions to a representative of their choosing. An Enduring Power of Attorney provides ongoing management responsibilities when an unexpected disabling event occurs.

With an Enduring Power of Attorney, the principal can plan the actions the representative will perform on their behalf. The principal can nominate one or more attorneys and determine precisely when that authority to act commences. The principal can give the attorney or attorneys the authority to make any decision that the individual would normally make. The principal also has the ability to limit the actions of the Enduring Power of Attorney.
For example, a financial attorney is responsible for all financial matters including receiving income, paying bills, taxation and contractual matters, investment and financial planning, legal actions or property management. Actions of a financial attorney are specifically confined to financial matters.

Meanwhile, a personal or health care attorney can make important decisions like where the principal should live and how daily activities like diet and dress should be managed. The health care attorney would have the authority to make all decisions regarding the administration of health services or procedures.

When should an Enduring Power of Attorney be assigned?
An Enduring Power of Attorney should be assigned when a principal is over the age of eighteen and has the capacity to understand the nature and effect of the power you are bestowing upon your attorney.

What would happen without an attorney?
Depending on the principal’s circumstances, the problems created by a disability could be far-reaching and pose financial, personal and health concerns. Some financial matters may be handled on an informal basis but even these minor decisions can lack clarity and definition.
In the absence of an Enduring Power or Attorney, disagreements between family members can arise and necessitate an application to be made to the Guardianship and Administration Tribunal for the appointment of an administrator. By assigning an Enduring Power of Attorney, the principal can choose who will administer their financial, personal and health interests.

What are the attorney’s responsibilities?
The duties of any appointed attorney that include:

  • acting with honesty and care.
  • recognising your right to confidentiality and dignity.
  • taking into account your existing relationships, values and culture.
  • respecting your views and wishes.

For financial attorneys:

  • maintaining records of dealings and transactions.
  • maintaining the principal’s property separate from the attorney’s unless it is jointly owned.
  • Avoiding conflict transactions. A conflict transaction is where there is a conflict between the principal’s interests and the interests of the attorney.

For personal/health attorneys:

  • considering the advice of your doctor or health care provider.
  • ensuring that any decision contributes to promoting health and wellbeing.
  • choosing the least intrusive treatment when there is a choice.

What to do if an attorney is not acting properly?
Anyone who suspects that the Power of Attorney is not being exercised properly can inform the Adult Guardian. The Adult Guardian has the power to protect the principal’s interests if the principal is disabled. The Attorney may be required to provide accounts and details regarding decisions that have been made. An Attorney who does not adequately protect the principal’s interests can be replaced.

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