Power of Attorney & Enduring Guardianship

Person with capacity appoints a substitute decision-maker (broad authority)

Powers of Attorney

A ‘power of attorney’ is a legal document that authorises an appointed person (the ‘attorney’) to make decisions on behalf of the person who appointed them (the ‘donor’ or ‘principal’).

The person who appoints an attorney ‘donates’ their power to make certain decisions to the attorney. The attorney is chosen and appointed by the donor when they have capacity.

There are a number of different types of powers of attorney, and there are differences between each state and territory in Australia. Despite these differences, there are three main types of ‘powers’:

  • General power of attorney
  • Enduring power of attorney
  • Enduring power of guardianship

General Power of Attorney

A general power of attorney is a legal document that gives the attorney the authority to make decisions about financial and legal matters on behalf of the person who appoints them. This power lasts only for as long as the person who appoints them has capacity — the general power ceases to operate if the donor loses capacity to make decisions. A general power of attorney is often used as a tool of convenience. For example, a person might appoint a general power of attorney to look after their financial and legal affairs in Australia while they travel overseas.

 

Enduring Power of Attorney

An enduring power of attorney is similar to a general power of attorney except that the powers continue to last (or ‘endure’) after the donor or principal loses capacity. An attorney is appointed by the donor when they have capacity to make decisions on their behalf when they lose capacity. In some jurisdictions, such as Victoria, ACT and Queensland, an enduring power of attorney may also be used to authorise medical and health decisions. More information on consent to medical treatment.

Enduring Power of Guardianship

An enduring guardian is appointed by the donor to make lifestyle decisions on their behalf when they lose capacity, for example about accommodation and daily activities. In some jurisdictions, such as New South Wales and Tasmania, and enduring guardian may also be authorised to make medical and health decisions. An enduring power of guardianship continues after the donor loses capacity.

 

Guardianship and Administration

If there are no valid or relevant power of attorney documents and there are concerns that a patient with impaired decision-making capacity may make detrimental decisions or be neglected or exploited, an application can be made to the relevant court or tribunal for the appointment of a guardian or administrator. Futher information on Guardianship and Administration in Australia.

Further Information

For more information about the powers of attorney scheme in each state and territory, please click below:

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