It usually starts with something small. A parent has a fall, or a partner goes in for surgery that was supposed to be routine, and suddenly someone needs to pay a bill from an account that isn't theirs. The bank is polite and completely immovable. You are the spouse, the son, the daughter — and none of that gives you the authority to move a dollar.
This is the moment most Australians discover what an enduring power of attorney is, and it is precisely the moment it is too late to make one. It is a document you can only sign while you are well enough not to need it.
What a power of attorney actually does
A power of attorney is a legal document in which you (the principal) appoint someone you trust (your attorney) to make decisions on your behalf. There are two broad kinds, and the difference between them is the whole point.
A general power of attorney covers a defined period or purpose — you're overseas for six months, or settling a property sale while you're in hospital. It ends the moment you lose the capacity to make your own decisions. That sounds backwards, and for planning purposes it is: the general power switches off exactly when you would most want it on.
An enduring power of attorney is the one that keeps working. As Moneysmart puts it, it "continues to operate if you lose the ability to make decisions". That is the document worth having.
The other thing to understand is that money and health are handled separately. In Queensland, an enduring power of attorney can cover both financial matters and personal or health matters in the one form. In New South Wales, a power of attorney covers financial and legal decisions only — bank accounts, bills, property, investments — and if you want someone to make decisions about medical treatment or where you live, you appoint an enduring guardian in a separate document. Other states and territories use their own names and their own forms. The principle is the same everywhere; the paperwork is not.
When the powers switch on
People often assume signing an enduring power of attorney hands over control immediately. It usually doesn't.
Health and personal decisions only ever come into effect when you can no longer make them yourself. Financial decisions are more flexible — in Queensland, for example, you choose whether your attorney's financial powers begin straight away, from a set date, in particular circumstances, or only if you lose capacity. Many people deliberately choose "only on loss of capacity" and sleep better for it. Others, particularly those already relying on a spouse to handle the admin, start the powers immediately.
Either way, you keep making your own decisions for as long as you are able. The document sits in a drawer doing nothing, which is the best outcome it can have.
What happens if you don't have one
Nothing happens automatically. That's the part that surprises families.
If you lose capacity without an enduring power of attorney in place, someone has to apply to a tribunal to be appointed. In Queensland it's the Queensland Civil and Administrative Tribunal (QCAT), which can appoint a guardian for personal decisions and an administrator for financial ones. In New South Wales a tribunal can make a financial management order. The names differ state to state; the effect doesn't.
That process takes time, usually costs money, and the person appointed may not be the person you would have chosen. If no suitable family member is available, or the family can't agree, the role can fall to a public official — the Public Guardian for personal decisions, the Public Trustee for financial ones. Meanwhile the mortgage still needs paying and nobody has authority to act.
An enduring power of attorney costs very little and takes an afternoon. The alternative is a tribunal application at the worst possible time.
Choosing the right person — and getting it signed properly
Your attorney must be over 18 and capable of making their own decisions. Beyond that, the test isn't who loves you most or who would be offended to be left out. It's who is organised, trustworthy with money, and willing to have an uncomfortable conversation with a bank or a sibling.
A few things worth thinking through before you sign:
- One attorney or several? You can appoint more than one and require them to act jointly (all decisions together) or severally (any one can act alone). Joint appointments prevent one person going rogue; they also mean nothing gets done if the two of them fall out.
- Different people for different roles. The child who is good with spreadsheets isn't always the one you'd want deciding on your medical care. You can split the roles.
- A substitute. Attorneys get sick, move overseas, or die first. Name a backup.
- Tell them. An attorney who discovers the appointment during a crisis is starting a long way behind.
The witnessing rules are stricter than for most documents, and they vary. In Queensland the witness must be a qualified person — a justice of the peace, commissioner for declarations, lawyer or notary — who certifies you appeared to understand what you were signing. In New South Wales an enduring power of attorney needs a "prescribed witness" such as a solicitor, barrister or licensed conveyancer, who must explain the effect of the document to you before you sign. In New South Wales you also need to register the document with the land registry if your attorney will deal with real estate. Get the witnessing wrong and the document may not stand, so use your state's official form and pay the small cost of having it done properly.
What to watch, and what to do if you're behind
If you don't have one, you're in the majority — that's not a reason to stay there. A same-week plan looks like this: download your state or territory's official form, decide who and when, book a witness, and tell the people involved where the original is kept. Most banks will also want to sight the document and register it against your accounts before they'll act on it, so don't leave that until it's needed.
If you already have one, check it still reflects reality. Powers of attorney made before a divorce, a remarriage, an interstate move or the death of an attorney can be stale or, worse, still pointing at someone who shouldn't be making your decisions. Moving states is a particular trap: a document valid where you made it may not be recognised the same way where you now live. You can revoke and remake one at any time while you still have capacity.
And if you're reading this because of an ageing parent rather than yourself, frame the conversation as mutual. "I'm sorting mine out — shall we do them together?" lands far better than a request to hand over control.
Wills, Death & Taxes Made Simple by Noel Whittaker covers powers of attorney alongside wills, estate planning and the tax traps that catch families after a death — in the same plain English. Buy direct from the author for $22.95 and you'll get both PDF and EPUB.
This article is general information only and doesn't take account of your personal circumstances. Figures are current at time of writing and change each financial year. Consider seeking advice before acting.