Powers of Attorney Explained
A Will deals with what happens after you die. But what if you become unable to manage your affairs while still alive? That's where Powers of Attorney come in.
1. What is a Power of Attorney?
A Power of Attorney (POA) is a legal document that authorises another person (your "attorney") to act on your behalf. Despite the name, your attorney doesn't need to be a lawyer—they can be any trusted adult.
Critical Distinction
A Will only takes effect after you die. A Power of Attorney operates while you're alive. Both are essential parts of a complete estate plan.
Why You Need a Power of Attorney
Consider what would happen if you:
- Were in a serious accident and in a coma
- Developed dementia or Alzheimer's disease
- Had a stroke that affected your cognitive abilities
- Were travelling overseas and unable to manage affairs at home
Without a valid POA, your family would need to apply to a tribunal or court for guardianship/administration orders—an expensive, time-consuming, and stressful process during an already difficult time.
Key Point
You can only create a POA while you have mental capacity. Once you lose capacity, it's too late. This is why everyone should have POAs in place before they're needed.
2. Types of Powers of Attorney
There are several types of POA, each serving different purposes:
General Power of Attorney
Authorises your attorney to handle financial and legal matters on your behalf.
Limitation: Automatically ends if you lose mental capacity.
Enduring Power of Attorney (Financial)
Continues to operate even after you lose mental capacity—when you need it most.
Essential: This is the type most people need for estate planning.
Medical/Healthcare Power of Attorney
Authorises your attorney to make medical and healthcare decisions if you can't.
Note: Called different names in different states (see state differences below).
Advance Care Directive
Not technically a POA—records your own wishes about future medical treatment rather than appointing someone to decide.
Complementary: Often used alongside a Medical POA.
3. Financial Powers of Attorney
A financial POA (specifically an Enduring Power of Attorney for financial matters) allows your attorney to manage your money and property.
What Your Financial Attorney Can Do
- ✓ Pay your bills and debts
- ✓ Operate your bank accounts
- ✓ Manage investments
- ✓ Lodge tax returns
- ✓ Buy and sell property
- ✓ Run your business
- ✓ Deal with government agencies
- ✓ Sign contracts on your behalf
What They Cannot Do
- ✗ Make or change your Will
- ✗ Vote on your behalf
- ✗ Make medical decisions (unless also appointed as medical attorney)
- ✗ Act outside the scope of powers you've granted
General vs Limited Powers
You can grant:
- General powers: Your attorney can do almost anything you could do yourself (most common)
- Limited powers: Restrict to specific matters (e.g., only managing a particular property while you're overseas)
When Does It Start?
You can specify when the POA begins:
- Immediately: Your attorney can act straight away (useful if you want help managing affairs)
- Upon incapacity: Only activates when you lose capacity (common for younger people)
- Upon a specific event: e.g., when you travel overseas
4. Medical Powers of Attorney
A medical or healthcare POA allows your attorney to make health and medical decisions when you're unable to make them yourself.
Types of Decisions
Consenting to Medical Treatment
Surgery, medication, procedures, experimental treatments
Refusing Treatment
Including life-sustaining treatment in end-of-life situations
Living Arrangements
Decisions about where you'll live (home, aged care facility)
Personal Care
Day-to-day care, lifestyle choices, social activities
State Terminology
Each state calls medical POAs something different:
| State | Term Used |
|---|---|
| NSW | Appointment of Enduring Guardian |
| Victoria | Appointment of Medical Treatment Decision Maker |
| Queensland | Enduring Power of Attorney (for personal/health matters) |
| WA | Enduring Power of Guardianship |
| SA | Advance Care Directive (appoints substitute decision-maker) |
| Tasmania | Enduring Guardian |
| ACT | Enduring Power of Attorney (for health care) |
| NT | Advance Personal Plan (appoints decision maker) |
Important Note
Medical POA documents are state-specific. If you move interstate, you should create new documents that comply with your new state's legislation. Unlike Wills, medical POAs don't always transfer cleanly between states.
5. Advance Care Directives
An Advance Care Directive (ACD)—also called a Living Will or Advance Health Directive—is a document where you record your own wishes about future medical treatment.
ACD vs Medical POA: What's the Difference?
Advance Care Directive
- • Records YOUR specific wishes
- • States what treatments you do/don't want
- • Directly instructs healthcare providers
- • May not cover every possible scenario
Medical Power of Attorney
- • Appoints someone to decide FOR you
- • They use their judgment based on your values
- • Can respond to unforeseen situations
- • More flexible but relies on their choices
Best practice: Have BOTH. Your ACD guides your medical attorney about your values and specific wishes, while they can handle situations your ACD doesn't cover.
What to Include in an ACD
- Life-sustaining treatment: Your wishes about CPR, mechanical ventilation, feeding tubes
- Pain management: Preferences about pain relief even if it may hasten death
- Organ donation: Whether you wish to donate organs
- Values statement: What matters most to you about quality of life
- Religious/cultural considerations: Any faith-based treatment preferences
Conversation is Key
The most important thing you can do is discuss your wishes with your family and medical attorney. A document is valuable, but understanding gained through conversation helps your loved ones make decisions that truly reflect your values.
6. Choosing Your Attorney
Choosing an attorney is one of the most significant decisions you'll make. This person will have considerable power over your life and assets.
Essential Qualities
Trustworthy
They'll have access to your finances and personal information
Responsible
Able to make careful, considered decisions
Available
Willing and able to take on the role when needed
Understands Your Values
Especially important for medical decisions
Geographically Accessible
Can physically attend to matters if required
Good Communicator
Can liaise with family, doctors, and institutions
Common Choices
- Spouse/Partner: Most common choice. They know you well and have a vested interest.
- Adult Child: Often appropriate, especially if your spouse has passed or also lacks capacity.
- Sibling or Other Family: A trusted relative who understands your values.
- Close Friend: Sometimes more appropriate than family in certain circumstances.
- Professional: Solicitors or trustee companies can act (fees apply).
Multiple Attorneys
You can appoint more than one attorney:
- Jointly: They must all agree on every decision (can cause delays)
- Severally: Any one of them can act independently
- Jointly and severally: They can act together or independently
- Substitute attorney: Steps in if the primary attorney can't act
Warning
Never appoint someone solely because you feel obligated. A poorly chosen attorney can cause significant financial harm or make medical decisions against your wishes. Choose based on capability and trustworthiness, not obligation.
7. State-by-State Differences
Unlike Wills, Powers of Attorney are highly state-specific. Each state has different legislation, forms, and requirements.
New South Wales
- Financial: Enduring Power of Attorney (Powers of Attorney Act 2003)
- Medical: Appointment of Enduring Guardian (Guardianship Act 1987)
- Note: Must use prescribed forms
Victoria
- Financial: Enduring Power of Attorney (Powers of Attorney Act 2014)
- Medical: Appointment of Medical Treatment Decision Maker (Medical Treatment Planning and Decisions Act 2016)
- Note: Separate Advance Care Directive legislation
Queensland
- Single Document: Enduring Power of Attorney covers both financial AND personal/health matters (Powers of Attorney Act 1998)
- Note: One document can appoint different people for different matters
Western Australia
- Financial: Enduring Power of Attorney (Guardianship and Administration Act 1990)
- Medical: Enduring Power of Guardianship (same Act)
- Note: Separate documents required
South Australia
- Financial: Enduring Power of Attorney (Powers of Attorney and Agency Act 1984)
- Medical: Advance Care Directive (Advance Care Directives Act 2013)
- Note: SA's ACD is comprehensive—combines directive AND decision-maker appointment
Tasmania
- Financial: Enduring Power of Attorney (Powers of Attorney Act 2000)
- Medical: Enduring Guardian (Guardianship and Administration Act 1995)
ACT
- Financial: Enduring Power of Attorney (Powers of Attorney Act 2006)
- Medical: Enduring Power of Attorney for health care (same Act)
- Note: Can be combined in one document or separate
Northern Territory
- Financial: Enduring Power of Attorney (Powers of Attorney Act 1980)
- Medical: Advance Personal Plan (Advance Personal Planning Act 2013)
Moving Interstate?
If you move to a different state, you should create new POA documents that comply with your new state's laws. While some recognition exists between states, it's not guaranteed, especially for medical POAs.
8. Revoking & Updating Your POA
You can change or revoke your Powers of Attorney at any time while you have mental capacity.
How to Revoke
- Create a written revocation: State clearly that you revoke the specific POA, including its date
- Notify your attorney(s): Inform them in writing that their appointment is revoked
- Notify institutions: Tell banks, land registries, and any organisations that have been using the POA
- Destroy old documents: Collect and destroy all copies of the revoked POA
Automatic Revocation
A POA may be automatically revoked by:
- Creating a new POA that revokes previous ones
- The attorney dying, losing capacity, or becoming bankrupt (for financial POAs)
- Marriage or divorce (in some states and circumstances)
- Your own death (POAs don't continue after death—your Will takes over)
When to Update
Review your POAs when:
- You marry, separate, or divorce
- Your attorney dies or becomes unsuitable
- Your relationship with your attorney changes
- You move to a different state
- Your health circumstances change significantly
- Every 5 years as a general review
Frequently Asked Questions
What is a Power of Attorney in Australia?
What's the difference between Enduring and General POA?
Can I have different attorneys for financial and medical decisions?
Can I revoke a Power of Attorney?
Ready to Create Your Power of Attorney?
ezyWill makes it easy to create state-compliant Enduring Power of Attorney documents online. Protect yourself and give your loved ones peace of mind.