Appointing an enduring attorney

Does the donor need a lawyer to appoint an enduring power of attorney?

The prescribed form for appointing an enduring power of attorney requires a lawyer or other suitably qualified legal professional to advise the donor, witness the signing of the form and certify they they have fulfilled the requirements of the Act.

The attorney's signature also has to be witnessed by an independant person although this witness is not required to be legally qualified.

What happens if there is a conflict between a personal care and welfare attorney and a property attorney?

(Protection of Personal and Property Rights Act 1988, s.99A)

If there are two enduring attorneys, one for personal care and welfare and one for property, there is a duty that they consult regularly in carrying out their respective powers or duties. However, either attorney can apply to the court asking it to direct otherwise if there is disagreement over the proposed exercise of a power.

Who should be appointed as an enduring attorney?

A great deal of care must be taken in choosing an attorney. It is crucial that the attorney is trustworthy and the donor is confident that the attorney will always act in the donor’s best interests.

The donor must feel sure that the person chosen would make decisions reflecting the donor’s own views. The attorney should also have the skills to manage the donor’s affairs and keep proper records and accounts.

Appointing a personal care and welfare attorney

In many cases a family member or close friend is appointed as attorney. Whilst it is natural that such a person is likely to be chosen, care must be taken to ensure that the attorney will act in the donor’s best interest.

Only one person can be given an enduring power of attorney for personal care and welfare, and a trustee company cannot be an attorney for personal care and welfare.

Appointing a property attorney

For a property attorney, a donor may choose an individual, such as a family member, a friend, or a business partner; or may choose a trustee company.

It is possible to have more than one property attorney, who can be appointed to act jointly or severally. A joint appointment means they all have to act together. A several appointment means they can each act individually.

What are the legal requirements for appointing an enduring power of attorney?

(Protection of Personal and Property Rights Act 1988, s.94A)

The form for an enduring power of attorney is prescribed in the 3PR Act and associated regulations.

Specific requirements are that:

the donor’s signature must be witnessed by an independent suitably qualified legal professional
the legal professional must certify that they have advised the donor. that they are independent and that they have no reason to believe the donor lacks capacity to give the power
the attorney’s signature must be witnessed by an independent person (not the donor)
the attorney must be at least 20 years old, not be bankrupt, and not be suffering from any legal incapacity

(for information see “Incapacity” in this chapter).

Should different people be appointed attorneys for personal care and welfare and for property?

(Protection of Personal and Property Rights Act 1988, s.99)

While the law allows for the same person to be appointed as attorney for property and for personal care and welfare, the donor may choose to appoint different people for each of these roles. The skills needed to look after personal care and welfare are often quite personal and different from those needed to look after someone’s financial affairs which usually requires some business knowledge or skill.

If an attorney for personal care and welfare is not also the property attorney, they will need to work closely with the property attorney, as it is the property attorney who exercises the financial management.

Note: The donor cannot give authority to a trustee company to be an enduring attorney for personal care and welfare. If a trustee company (for example, the Public Trust) is the attorney for property, the donor would need to appoint someone else for personal care and welfare.