Enduring power of attorney in Australia: what it is and how it works in your state
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Short answer
An enduring power of attorney is a legal document that lets someone you trust make financial and legal decisions for you, and it keeps working if you lose capacity. Every state and territory has its own form and rules, and some also cover health and lifestyle decisions in the same document or in a separate one.
Key facts
- It only works while you are alive. After death, your will and your executor take over.
- You must have capacity when you sign it. Once you have lost capacity, it is too late to make one.
- Each state and territory has its own form, name and witnessing rules.
- In Tasmania, an enduring power of attorney must be registered with the Land Titles Office before your attorney can act.
- Without one, your family may have to apply to a tribunal to be appointed, which takes time and costs money.
What does an enduring power of attorney do?
A power of attorney lets you appoint someone, called your attorney, to make decisions for you. An ordinary (general) power of attorney stops working if you lose the capacity to make your own decisions, for example because of dementia, a stroke or an accident. An enduring power of attorney keeps working, which is exactly when your family needs it most.
Your attorney can pay bills, manage bank accounts, deal with Centrelink, look after investments and, depending on your state, sell property. You can limit what they may do and when the power starts.
Why does it matter if I don’t have one?
If you lose capacity without an enduring power of attorney, nobody automatically has the right to manage your money, not even your spouse. Your family may have to apply to the tribunal in your state for a financial manager or administrator to be appointed. That can take weeks or months, and the tribunal may choose someone you would not have picked, including the public trustee.
What is the difference between financial and personal decisions?
Financial decisions cover money and property. Personal decisions cover where you live, the support you receive and, in most places, your health care. Some states let you cover both in one enduring power of attorney. Others use a separate document, often called an enduring guardianship, for personal and health decisions. Medical wishes are usually written down in an advance care directive.
How does it work in each state and territory?
| State or territory | Money and property | Personal and health decisions | Official help |
|---|---|---|---|
| NSW | Enduring Power of Attorney | Appointment of Enduring Guardian | NSW Trustee & Guardian |
| VIC | Enduring Power of Attorney (can also cover personal matters) | Appointment of Medical Treatment Decision Maker | Office of the Public Advocate |
| QLD | Enduring Power of Attorney (one form for financial, personal and health matters) | Same form, plus an Advance Health Directive | Office of the Public Guardian |
| WA | Enduring Power of Attorney | Enduring Power of Guardianship | Office of the Public Advocate |
| SA | Enduring Power of Attorney | Substitute decision-maker in an Advance Care Directive | Office of the Public Advocate |
| TAS | Enduring Power of Attorney (must be registered) | Enduring Guardian | Office of the Public Guardian |
| ACT | Enduring Power of Attorney (can cover property, personal and health care) | Same form, plus a Health Direction | Public Trustee and Guardian |
| NT | Advance Personal Plan (decision makers for financial and personal matters) | Same plan, with advance care statements | Office of the Public Guardian and Trustee |
A document made in one state is generally recognised in another if it was made correctly under the law of the state where you signed it. If you move interstate, it is still worth checking with a solicitor whether you should make a new one.
Who should I choose as my attorney?
- Someone you trust completely with money, and who is organised.
- Someone likely to be around and able to act, ideally in the same state.
- Someone who knows your values and will speak up for you.
- Consider appointing a second attorney, either jointly (they act together) or as an alternative (if the first can’t act).
How do I make an enduring power of attorney?
- Get the official form for your state or territory from the government body in the table above.
- Decide who your attorney is, what they may decide and when the power starts.
- Sign it in front of the right witnesses. The rules differ: some states need a solicitor, JP or other authorised witness, and Victoria needs two adult witnesses. Your attorney can never be your witness.
- Your attorney usually signs to accept the role.
- In Tasmania, register it with the Land Titles Office. Elsewhere, registration is usually only needed if your attorney will deal with land.
- Keep the original safe and tell your attorney where it is. Give certified copies to your bank and your attorney.
Where should I keep it?
Keep the signed original somewhere safe that your attorney can reach quickly, such as with your solicitor. Store a scanned copy too, so your attorney knows what it says and which institutions to contact. An encrypted vault like ifever can hold the copy and pass it to your attorney only when it is needed.
Common questions
Does my spouse automatically have power of attorney?
No. Being married or in a de facto relationship does not give your partner the legal right to manage your money or property if you lose capacity. You need an enduring power of attorney for that.
Does an enduring power of attorney end when I die?
Yes. It ends on your death. From then on, your executor deals with your estate under your will.
Do I need a solicitor to make one?
Not always. Most states publish a free official form you can fill in yourself. A solicitor is worth it if your finances are complex, you own a business or you are unsure who to appoint. In some states a solicitor is one of the few people who may witness it.
Can I cancel or change my enduring power of attorney?
Yes, as long as you still have capacity. You usually revoke it in writing and tell your attorney and anyone holding a copy. In Tasmania, the revocation must also be registered.
Is an enduring power of attorney the same as an enduring guardian?
Not in every state. In NSW, WA and Tasmania, an enduring guardian makes personal and health decisions, while the attorney handles money and property. In Queensland and the ACT, one enduring power of attorney can cover both.
Sources and official help
- NSW Trustee & Guardian
- Office of the Public Advocate (VIC)
- Office of the Public Guardian (QLD)
- Office of the Public Advocate (WA)
- Office of the Public Advocate (SA)
- Land Titles Office, power of attorney forms (TAS)
- Advance Personal Plan (NT)
- Moneysmart: memory loss, dementia and your money
These guides are general information, not legal or financial advice. Laws differ between states and territories and change over time. Speak to a solicitor or your state or territory public trustee about your situation.