An EPA is a legal document that enables a person to appoint a trusted person(s) to make property and/or financial decisions on their behalf. An EPA is an agreement made by choice that can be executed by anyone who has full legal capacity and is over the age of 18.

The benefit of an EPA is that unlike an ordinary power of attorney, it will continue to operate even if the donor loses full legal capacity.

As with a last will and testament, an EPA is a private arrangement, so no formal registration of the document is required, however, if the person making the EPA owns land or property, they may want to consider lodging it with the appropriate land titles office/department.

Making an EPA enables the person (known as the donor) to:

  • choose a trusted person (the attorney) to manage his or her property and finances immediately or in the event of loss of capacity
  • safeguard their best interests should they lose capacity to make reasoned decisions
  • provide for continuity of management of their financial and property affairs, thereby minimising immediate financial hardship, if for any reason they are unable to manage their financial affairs (for example, if a person still has capacity, but due to a physical disability they find it difficult to attend banking institutions, by choosing to have their EPA come into effect immediately, their attorney can carry out these tasks for them)
  • impose conditions or restrictions on the exercise of the power based on their wishes for the management of their estate
  • maintain confidentiality in respect of their financial and property affairs.

If a donor chooses to have their EPA take immediate effect, it will not be necessary for the attorney to make an application to the State Administrative Tribunal for an order of legal incapacity, to bring the EPA into effect.

Enduring Power of Guardianship (EPG)

An EPG is a legal document that authorises a person of your choice to make important lifestyle, personal and treatment decisions on your behalf should you ever become incapable of making such decisions yourself. This person is known as an enduring guardian.

An enduring guardian (EG) could be authorised to make decisions about things such as care service, where you live and the treatment you receive.

An EG cannot be authorised to make property or financial decisions on your behalf – these decisions would be covered under an EPA (details above).

You can appoint more than one enduring guardian as joint enduring guardians, but they must act jointly which means they must reach agreement on any decisions they make on your behalf. If you plan to appoint more than one enduring guardian, it is important you consider their ability to work together on your behalf. It is recommended to appoint no more than two joint EGs and you may also appoint substitute EG(s).

This would enable your EG to:

  • decide where you live (whether permanently or temporarily)
  • decide who you live with
  • decide whether or not you work and, if so, any matters related to that work
  • make treatment decisions on your behalf to any medical, surgical or dental treatment or other health care (including palliative care and life-sustaining measures such as assisted ventilation and cardio-pulmonary resuscitation)
  • decide what training and education
  • determine who you associate with
  • commence, defend, conduct or settle any legal proceedings on your behalf, except proceedings that relate to your property or estate
  • advocate for and make decisions about the care/support services you access
  • seek and receive information on your behalf.

When making an EPG you must also determine the circumstances under which your EG(s) will act. For example, you might direct that your EG act only when they are in the same State as you. As with a last will and testament and EPA, an EPG is recognised as a private legal agreement, so it does not have to be registered.

Both parties must have full legal capacity at the time of signing the EPG.