Enduring powers of attorney: Planning ahead by choosing someone to make decisions for you
Your EPA attorney’s powers and duties
Scope and limits of your attorney’s powers
It’s up to you to decide how much power your attorney will have. When you create the EPA you can give them a general power to deal with all issues, or you can restrict their powers to certain areas (but there are some decisions a care and welfare attorney can’t make, no matter what you say in your EPA, see the next heading).
For example, when you create a property EPA you might give the attorney authority only to deal with your house, rather than all your money and property.
You can place specific conditions and restrictions on the EPA – for example, your property EPA might specify that your attorney can borrow only up to a certain limit.
Things that care and welfare attorneys are never allowed to do
Even if you do give your attorney a general power to make decisions about all kinds of issues, there are some types of decisions the law says your attorney can’t legally make for you. It says they can’t:
- make decisions for you about getting married or divorced, or adopting out your children
- agree to you having electro-convulsive treatment (ECT) or brain surgery, or being part of medical experiments
- refuse to allow you to have standard medical treatment when it’s necessary.
Your attorney’s responsibilities
The laws sees your EPA attorney as being in a relationship of special trust with you (what the law calls a “fiduciary” relationship). They have to act with absolute openness and fairness towards you, exercise reasonable care, and avoid any conflict of interest with you. Your attorney must always promote and protect your welfare and best interests. They can’t use money for their own benefit (unless your EPA allows this), invest it unwisely, or act in a way that you haven’t authorised in the EPA.
Your attorney also has these specific responsibilities:
- Consulting with you and encouraging you to be self-reliant – Your attorney must consult with you about decisions, as far as this is practical. They must also try to get you to develop and exercise whatever capacity you have to make decisions and act for yourself. A care and welfare attorney must also help you participate in community life as much as possible.
- Consulting with other key people – When making decisions, your attorney must also consult with anyone else who you’ve specified in the EPA as people who should be consulted, and with any other attorney you’ve appointed under that EPA or another EPA. If you’ve appointed different attorneys for care and welfare and for property, both attorneys have to consult with each other regularly (not just when they’re making decisions) to make sure there’s ongoing communication between them.
- Giving information to others – In your EPA you can name people who’ll have the right to get relevant information from your attorney. Your attorney will have to give them the information when they ask for it.
- Accountability for property – Your property attorney has to keep your money and property separate from their own and be able to account for it. They also have to keep records of each financial transaction, and can be fined up to $1,000 if they don’t. Your care and welfare attorney also has to consider the financial implications when they’re making decisions.
When attorneys can make decisions that benefit themselves financially
In general, your attorneys shouldn’t benefit themselves or anyone other than you, or recover expenses from your property, unless the EPA specifically says they can or the Family Court allows it.
However there are three exceptions to that general rule:
- if your attorney is your spouse or partner, and you’re living together and sharing incomes, it’s OK if they benefit from decisions they make about your joint money or property
- your attorney can recover reasonable out-of-pocket expenses (but not lost wages, salary or other remuneration)
- if your attorney is for example a lawyer or accountant, they can charge professional fees and expenses for work they did in that professional capacity to give effect to decisions they made under the EPA.