Enduring powers of attorney and guardianship in Australia: forms, witnesses and costs by state

An enduring power of attorney lets a person you choose manage your financial and legal affairs, and keeps working if you lose decision-making capacity. A separate appointment, called an enduring guardian in NSW, a medical treatment decision maker in Victoria, a personal or health matters attorney in Queensland, and an enduring guardian in WA, covers health and lifestyle decisions. Each state has its own Act, its own prescribed form and its own witnessing rules, so a document must be made on the current form for your state. If you lose capacity without one, a family member may have to apply to the state tribunal (NCAT, VCAT, QCAT or WA's SAT) for a financial manager or guardian to be appointed, which takes time and gives you no say in who is chosen.

General information only. A lawyer, public trustee or your state's public advocate can explain your state's form.

The documents by state

Tasmania, the ACT and the NT have their own Acts and forms.

Who can witness

Witnessing is where many documents fail. Examples of the current approach (check the form's instructions, which state the rule):

• NSW: the enduring power of attorney must be witnessed by a prescribed witness, such as a solicitor, barrister, registrar of the Local Court, licensed conveyancer who has completed an approved course, or certain other qualified people. The witness certifies that the principal appeared to understand the document. The attorney must accept the appointment by signing.
• Victoria: two adult witnesses, one of whom must be authorised to witness affidavits (for example a lawyer, JP or other authorised person) or be a registered medical practitioner. Neither witness may be a relative of the principal or the attorney, or the attorney. The attorney must accept in a separate statement.
• Queensland: an eligible witness, such as a justice of the peace, commissioner for declarations, notary public or lawyer, who must not be the attorney or a relative. The witness must be satisfied the principal has capacity.
• WA: two witnesses, one authorised to witness statutory declarations, neither of whom is an attorney. Check the current form, as WA has been reviewing these instruments.

When the power starts and ends

• Start: many states let you choose whether a financial power starts immediately or only once you lose capacity. Starting immediately is convenient for a travelling or unwell principal but needs trust.
• Capacity: you can revoke or change the document while you have capacity.
• Death: every power of attorney ends at death. From then on, the executor named in the will is in charge. An attorney who keeps using the account after death is acting without authority.
• Marriage and divorce: some states provide that marriage or divorce revokes or affects an appointment of a spouse. Check your state.

Attorneys' duties

An attorney must act in the principal's interests, keep their money and property separate from the attorney's own, keep records, avoid conflicts of interest, and (unless the document allows it) not make gifts or benefit themselves. The tribunal can review an attorney's conduct, order accounts, revoke the appointment and appoint a financial manager or administrator. See misuse of powers of attorney.

What it costs

These figures are illustrative ranges, not quotes. The main financial lesson: a properly made document costs far less than a tribunal application and ongoing fees for a public administrator.

Interstate recognition

Each state recognises enduring powers made in other states to the extent that they could have been validly made under its own law, but institutions sometimes question interstate forms. If you move, or own property in another state, consider making a new document under that state's law, especially for land transactions, which land registries scrutinise closely. There is no single national register of enduring powers of attorney; governments have discussed harmonisation, so check for changes.

Worked scenario (illustrative)

Ruth, 78, lives in Brisbane and has early dementia. She has no enduring power of attorney. Her son wants to sell her unit to pay a refundable accommodation deposit for an aged care home.

• Without an EPA, he must apply to QCAT for appointment as administrator, with medical evidence. Until then, the sale cannot proceed and the deposit cannot be paid in a lump sum.
• If Ruth still has capacity for the document, a Queensland EPA witnessed by an eligible witness (with a doctor's assessment on file, given her diagnosis) may be possible quickly.
• Had she made an EPA years earlier, her son could have acted with no tribunal process.

FAQ

Can I appoint more than one attorney?

Yes. You can usually appoint attorneys to act jointly, severally (each alone), or jointly and severally, and name substitutes. Joint appointments add a check but can be slow.

Does my attorney get paid?

Generally only out-of-pocket expenses unless the document or the law allows payment. Professional attorneys, such as trustee companies, charge fees.

Does a power of attorney let someone change my will?

No. An attorney cannot make or change a will for you. Only a statutory will application to the Supreme Court can do that for a person without capacity.

Can my attorney make medical decisions?

In NSW and WA, not under the financial power: you need an enduring guardian appointment. In Queensland an EPA can cover personal and health matters. In Victoria a separate medical treatment decision maker appointment is used.

Sources

• NSW Legislation — Powers of Attorney Act 2003; Guardianship Act 1987
• Victorian Legislation — Powers of Attorney Act 2014; Medical Treatment Planning and Decisions Act 2016
• Queensland Legislation — Powers of Attorney Act 1998
• WA Legislation — Guardianship and Administration Act 1990
• Office of the Public Advocate (Victoria) — forms and guides
• NCAT, VCAT, QCAT — guardianship and financial management
• Related: documents checklist, overview, valid wills