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Enduring powers of attorney – new legislation in effect from late 2008

By Tara Grant - 1 May 2009

Changes to the law governing powers of attorney came into effect on 26 September 2008. The changes are designed to better protect the donor (person who originally sets up the power of attorney)

What is a Power of Attorney?

A Power of Attorney is a legal arrangement where you (the donor) appoint another person (the attorney) to make decisions for you if you are no longer able to or if you are overseas.

There are two types of enduring powers of attorney:

  1. Property: where your attorney makes decisions about your property for you.  You can give the attorney the power to act on your behalf straight away or only if you are unable to make decisions for yourself.
  2. Personal Care and Welfare: Where your attorney makes decisions about your care and welfare when you are unable to.  Such decisions might include whether you need residential care and/or medication.

Changes to the law

On 26 September 2008, a new Act applying to enduring powers of attorney came into effect.

Key changes to the law, designed to better protect donors, include:

  • a clearer definition of when someone is mentally incapable
  • strengthened witnessing requirements when establishing powers of attorney
  • new requirements for attorneys to consult with donors and act in a donor's interest

Implications for someone acting as an attorney

If you are an attorney acting, you need to familiarise yourself with the new duties imposed on you by the Act.

In many cases, before acting under a power of attorney, attorneys will now need a medical certificate confirming the donor is mentally incapable of acting for themselves.

Benefits of setting up powers of attorney

If you become unable to make decisions for yourself and have not appointed an attorney, a family member or care organisation will have to apply to the Family Court for the right to make decisions for you.

This is an expensive procedure and can easily be avoided.

So if you don't have powers of attorney you should consider the benefit of doing so.

If you would like help with your Power of Attorney or have any questions regarding these law changes, please contact Catherine Atchison or Tara Hurley.


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