An Enduring Power of Attorney is a legal document that gives a trusted person, the legal authority to act for you, and to make legally binding decisions on your behalf.
The Public Trustee and Guardian provides a professional service and will prepare your Enduring Power of Attorney, where you have nominated the Public Trustee and Guardian as your executor and also wish to appoint the Public Trustee and Guardian as your attorney for property and financial matters, for the determined fee set out in our fees brochure.
COVID-19 update - changes to Wills and Enduring Powers of Attorney (EPA's):
Effective: 2 June 2020
COVID-19 update: During the COVID-19 pandemic, the Public Trustee and Guardian (PTG) has adopted a new policy in respect to making Wills and Enduring Powers of Attorney (EPA's). This has been necessary to comply with current government restrictions and guidelines for all but essential services and to protect the health and safety of our staff and clients.
PTG has amended its COVID-19 policy on the preparation of Wills and EPOAs to accommodate S.4 of the COVID-19 Emergency Response Act 2020. Under this revised policy, PTG will continue to make Wills and EPOAs only for persons in Emergency situations. For these purposes, 'Emergency' means where the person is gravely or terminally ill.
In these Emergency situations, please call our switchboard on (02) 6207 9800 during business hours or email us through our contact form to enquire about making an appointment.
Should we agree to go ahead and make your Will/EPOA, one of our staff will contact you to make the necessary arrangements. We will take your instructions by phone and make a draft of the Will/EPOA. We will either email the draft Will/EPOA to you or visit your place of residence to confirm and finalise the Will/EPOA.
To arrange the signing and witnessing of the document, PTG will observe the following practice.
A. If the Will/EPOA is to be signed and witnessed in person:
During the visit, our staff will wear a mask and use antibacterial sanitiser and may ask you to do the same. The meeting will also seek to identify you, ensure that you have capacity to make a Will/EPA and that you are making your Will/EPA freely and voluntarily without coercion.
Once the Will/EPA is made, it will be printed, signed and witnessed on the spot.
B. If the Will/EPOA is to be signed by the testator/principal and then witnessed by PTG by audio-visual link:
The signature and witnessing of the Will/EPOA must be undertaken in real time.
The signature and witnessing must be undertaken through an audio-visual link (eg Skype, Facetime, Webex, Zoom, Microsoft Meeting etc).
PTG must observe the testator/principal's signature of the document in the original. The signature of the witness will be accompanied by the following statement:
'I confirm that I witnessed the signature of XYZ by audio-visual link and that the document that was signed is one and the same as the document I witnessed and that I witnessed the signing of the document in accordance with S.4 of the COVID-19 Emergency Response Act 2020.'
No fee is payable for Will/EPA's made in this manner during COVID-19.
Why have an Enduring Power of Attorney?
In case of accident, sudden illness, planned or unexpected absence, or when you just can't cope, you may need someone to manage your financial affairs.
An Enduring Power of Attorney is particularly useful:
- to relieve yourself of the day to day demands of financial paperwork and record keeping;
- as a safety net when travelling or to allow someone to handle your affairs in your absence;
- to avoid burdening family or friends with the responsibility of looking after your affairs; or
- if you are unable to manage your prosperity or financial affairs.
Types of Powers of Attorney
General Power of Attorney:
- only valid while you have legal capacity;
- useful if you are going away for an extended period and you do not want the authority to continue should you lose legal capacity; and
- usually drawn up for a specific purpose with specific or general powers.
Enduring Power of Attorney (EPA):
- continues to be valid even if you lose legal capacity due to disability or illness;
- may empower your attorney to make financial, property, lifestyle and health decisions;
- may be activated when required or upon loss of legal capacity; and
- allows your attorney to commence or to continue to manage your affairs even though you have become unable to give lawful instructions.
What is "legal capacity"?
This relates to a person's ability to fully understand the nature and implication of the document they are signing. It may relate to a person's state of mind or to their legal age (over 18 years).
Should any doubt arise about legal capacity, a medical report may be obtained confirming the person's ability to conduct his or her own financial affairs.
When does an Enduring Power of Attorney become effective?
The person making the Enduring Power of Attorney may state in the document when and how power the Enduring Power of Attorney may is exercisable.
An Enduring Power of Attorney for financial and property matters may be expressed to commence in a range of circumstances.
- Starting on a date specified in the Enduring Power of Attorney.
- Upon the loss of capacity of the person giving the power.
If an Enduring Power of Attorney for financial and proeprty matters does not state when it is exercisable, the power can be exercised once the Enduring Power of Attorney is made.
However, an Enduring Power of Attorney for personal and health care matters may commence only upon the loss of capacity of the person. This must be certified by a medical practitioner.