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POWERS OF ATTORNEY

NB The Public Trustee provides a professional service and will prepare your Enduring Power of Attorney, where you nominate the Public Trustee as your attorney, for the determined fee set out in our fees brochure. We do not however, provide legal advice to persons seeking to prepare their own Enduring Power of Attorney. Additionally, where we have not prepared an Enduring Power of Attorney, we regret that we are unable to act as witnesses due to the obligations that are imposed upon witnesses under the new legislation.

What is a Power of Attorney?

A power of attorney is a legal document that gives a trusted person, the legal authority to act for you, and to make legally binding decisions on your behalf.

Please click here to view our Powers of Attorney Brochure in addition to our When you are unable to manage your affairs Brochure

Why have a Power of Attorney?

In case of accident, sudden illness, planned or unexpected absence, or when you just can't cope, you may need someone to manage your financial affairs.

A Power of Attorney is particularly useful -

• to relieve yourself of the day to day demands of financial paperwork and record keeping;
• as a safety net when travelling or to allow someone to handle your affairs in your absence;
• to avoid burdening family or friends with the responsibility of looking after your affairs; or
• if you are unable to manage your prosperity or financial affairs.

Types of Powers of Attorney

General Power of Attorney -

• only valid while you have legal capacity;
• useful if you are going away for an extended period and you do not want the authority to continue should you lose legal capacity; and
• usually drawn up for a specific purpose with specific or general powers.

Enduring Power of Attorney (EPA) -

• continues to be valid even if you lose legal capacity due to disability or illness;
• may empower your attorney to make financial, property, lifestyle and health decisions;
• may be activated when required or upon loss of legal capacity; and
• allows your attorney to commence or to continue to manage your affairs even though you have become unable to give lawful instructions.

What is "legal capacity"?

This relates to a person's ability to fully understand the nature and implication of the document they are signing.  It may relate to a person's state of mind or to their legal age (over 18 years).

Should any doubt arise about legal capacity, a medical report may be obtained confirming the person's ability to conduct his or her own financial affairs.

When does a Power of Attorney become effective?

You may wish to appoint an attorney now but delay activation.  In this way the documentation is prepared, signed and held, pending further advice. 

You may place the responsibility of activating your power of attorney with your doctor, should illness or disability prevent you from giving instructions. In this instance your doctor would contact your appointed attorney.

When should I appoint an attorney?

The Public Trustee encourages everyone with legal capacity to have an Enduring Power of Attorney in place. 

Many people do not realise just how important it is to appoint an attorney - until too late.

What happens if I don't appoint an attorney?

If you have not appointed an attorney, and you lose legal capacity, the ACT Guardianship and Management of Property Tribunal may appoint a Financial Manager for you.  This can be the Public Trustee or some other individual or organisation.

A Financial Manager will act in a similar way to an attorney and is required to report at regular intervals to the Tribunal and to the Public Trustee.

Can I cancel my Power of Attorney?

You may cancel your Power of Attorney in writing at any time, provided you have the legal capacity to do so.

Who should you choose as an attorney?

Acting as attorney is a demanding responsibility and you should ensure that the person you choose has the skills to manage your affairs properly. 

An ideal attorney should –

• have integrity;
• be willing to act in that capacity;
• have competence in areas of relevance;
• be able to act in a business-like manner;
• be able to spare the time necessary for the task;
• live in the locality in which he/she is to act;
• be agreeable to respecting the confidentiality of the donor’s affairs; and
• be impartial and have no known conflict of interest.

Why appoint the Public Trustee as your attorney?

The Public Trustee has the skills to meet your particular needs including managing your banking, real estate, investments and regular payments.

We exercise tact, empathy, discretion and respect the rights and privacy of our clients.  Each matter is personally managed by one of our experienced Trust Officers with genuine concern for your well-being.

Most importantly, we are a trusted, accountable, perpetual, local organisation.

The Public Trustee is also an ideal, qualified and capable alternate attorney.  As alternate attorney, the Public Trustee will act in the event of your attorney dying or otherwise being unable to act on your behalf.

Living Wills

This term is not used in the ACT. However, an enduring power of attorney is sometimes associated with a "Living Will" which can be used to appoint someone to make health-care decisions for the donor eg a specified course of treatment to be taken or forbidding treatment or food or water.

Alternate Attorneys

An alternate attorney is one appointed by the donor to act in place of the attorney if unable or unwilling to continue. An alternate attorney is either named in the Power of Attorney document or may be appointed by your attorney after loss of capacity of the donor.

In which State or Territory should I make my Power of Attorney

Each Australian State and Territory has separate Powers of Attorney legislation.

Most states and territories have mutual recognition provisions in their power of attorney legislation, which permit the portability of powers within Australia. 

You can find out about Powers of Attorney in other jurisdictions by searching other Public Trustee websites from our links on our home page.

Is there a cost?

We will prepare your Enduring Power of Attorney and your Will, for a fixed fee as per our Fees Brochure. For persons requiring us to prepare an Enduring Power of Attorney only, we will apply our hourly rate.

ACT Enduring Power of Attorney Form

This PDF document contains further information on Enduring Power of Attorney and a form to arrange EPA in the Australian Capital Territory. To view Acrobat (PDF) documents. You will need Acrobat Reader.