There are a number of different types of ‘Powers of Attorney’, and there are differences between each State and Territory in Australia, as to how and when they are used.
In general, across Australia there are six main types of ‘Powers’ in use, although not all are applicable within each State or Territory:
|Type of ‘Power’||Purpose|
|General Power of Attorney||This is a legal document that involves formally giving someone else the power to make financial decisions only on your behalf for a specific period/event.It is used while you have the mental capacity to do so – that is, you are still able to make your own decisions. The General Power of Attorney ends when you lose this capacity – that is, you are not able to make your own decisions any more, or you choose to formally end it.For example, you might choose to appoint an Attorney if you were going overseas for a period, and require someone else to sell your house or pay your bills.Under such circumstances you may wish to consider having an expiry date for a General Power of Attorney.|
|Enduring Power of Attorney||An Enduring Power of Attorney (EPA) is a legal document where one person gives another person the power to act on his or her behalf to manage their financial & legal affairs (e.g. to buy and sell property and operate bank accounts).Such an authority can only be legally granted when the ‘Donor’ has sufficient mental capacity and understanding to do so.Enduring means it continues (endures) when you are unable to make these types of decisions for yourself.|
|Enduring Power of Guardianship||An Enduring Power of Guardianship is a legal document where you (the Donor) appoint someone (the Guardian) to make personal and lifestyle decisions on your behalf, when you lose the capacity to make decisions for yourself. For example, where you should live and other support services you should have access to.In some jurisdictions, such as New South Wales and Tasmania, an Enduring Guardian may also be authorised to make medical and health decisions, on your behalf. An Enduring Power of Guardianship continues after the Donor loses their capacity to make decisions for themselves.An Enduring Guardian cannot be authorised to make property or financial decisions on your behalf.An Enduring Power of Guardianship is often affected alongside that of an Enduring Power of Attorney, so that both your personal and financial wishes are met in the future.|
|Medical Power of Attorney||The equivalent intent of a Medical Power of Attorney is known under different names in different States:In the ACT, Enduring Power of Attorney;In VIC, Enduring Power of Attorney (Medical Treatment);In QLD, an Advance Health Directive or an Enduring Power of Attorney;In SA, Advance Care Directive;In NSW and Tasmania, Enduring Guardianship;|
In WA, Guardianship Orders;
In the NT, Medical Enduring Power of Attorney.
This legal document is about appointing someone to make various medical decisions, including possible ‘life and death’ decisions, such as whether to continue with certain medications, drugs, medical procedures, life support systems etc.
For example, you might want to appoint someone in this role if you have no living relatives, as hospitals will usually make such decisions in collaboration with your close family members.
|Advanced Care Directive||An Advance Care Directive is a way to record your medical treatment wishes, so that if you were unable to understand or respond to your medical treatment options, your wishes could still be respected.Under common law in Australia, it is expected that a doctor should comply with the wishes expressed in an Advanced Care Directive, taking into account your clinical situation at the time.They would also talk to the ‘Person Responsible’ or ‘Enduring Guardian’, who can speak on your behalf about what they know of your wishes, in any given medical circumstances.|
|Anticipatory Direction||An Anticipatory Direction is similar in intent to an Advanced Care Directive. It is a legal document by which you may, while of sound mind, give directions about the medical treatment you want, or do not want, towards the end of your life, if you are no longer able to make or communicate decisions yourself.For example, it will usually be referred to during ‘end of life’ choices, such as when you are in the terminal phase of an illness, or in a persistent vegetative state.It can relieve stress from those close to you, as they are not forced to make difficult ‘life and death’ decisions on your behalf, and those treating you can be confident that they are acting in accordance with your wishes.|
The appropriate use of the ‘powers’ listed above can be quite confusing and the subject of change, so we would recommend that you follow up with further research (via our suggested links section below), as to what is currently available within your particular State or Territory.
For example, recently in South Australia, the existing Enduring Power of Guardianship, Medical Power of Attorney and Anticipatory Direction have been replaced with a single, Advance Care Directive Form, which is made under the Advance Care Directives Act 2013.