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Types
Types of power of attorney — and which one applies
The real issue
Most people delay setting up an enduring POA until it's needed — and by then, it may be too late. If someone loses mental capacity without an enduring POA in place, their family must apply to the tribunal for guardianship — a slow, costly, and emotionally difficult process that a $300 document could have avoided entirely. The time to set up an enduring POA is now, while the person clearly has capacity.
| Type | What it covers | When it applies | Lapses when |
|---|---|---|---|
| General POA | Financial and legal decisions only | Specific purpose, limited time — e.g. selling property while overseas | Donor loses mental capacity OR specified end date |
| Enduring POA (financial) | Financial and legal decisions — bank accounts, property, investments | Continues even if donor loses capacity — used for long-term planning | Donor's death, or revocation while still has capacity |
| Enduring guardianship / personal / medical POA | Personal and health decisions — medical treatment, accommodation, lifestyle choices | Only activates when donor loses capacity to make those decisions | Donor's death |
A standard POA does NOT cover healthcare decisions — you need a separate enduring guardianship / medical treatment decision-maker document for those. The two documents together form complete coverage for financial AND personal/health decisions.
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Choosing an attorney
Who you can appoint — and what to consider
Your attorney (the person you appoint — not a lawyer) has significant power over your affairs. The choice matters more than the paperwork.
| Consideration | What it means |
|---|---|
| Who can be appointed | Any adult with mental capacity who is not a paid carer or healthcare provider for the donor (in most states). Can be a family member, trusted friend, or professional (accountant, solicitor). |
| Multiple attorneys | You can appoint two or more attorneys. They can act "jointly" (must agree on everything) or "severally" (each can act independently). Jointly is safer; severally is more practical for day-to-day matters. |
| Successor attorney | Appoint a backup who takes over if your primary attorney cannot act (death, incapacity, resignation). Without a successor, you may need tribunal intervention if the primary attorney is unavailable. |
| Trustworthiness vs availability | The most trusted person and the most practically available person are not always the same. Consider both — an interstate sibling may be deeply trusted but unable to attend to daily banking needs. |
A professional trustee company (e.g. State Trustees, Public Trustee) can be appointed as your attorney if you have no suitable person. They charge a fee but provide independent oversight and avoid family conflict. Contact your state's public trustee for information.
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Setting it up
How to create an enduring POA — state by state
| State | Document name | Where to get the form / set it up | Witnessing requirement |
|---|---|---|---|
| QLD | Enduring Power of Attorney | Queensland Public Trustee: pt.qld.gov.au · 1300 360 044. Free forms available. | Witnessed by an eligible witness (Justice of the Peace, solicitor, notary, or doctor for medical matters) |
| NSW | Enduring Power of Attorney (financial) + Enduring Guardianship | NSW Trustee and Guardian: tag.nsw.gov.au · 1300 109 290. Online preparation available. | Solicitor or NSW Trustee must certify the donor's capacity and explain the document |
| VIC | Enduring Power of Attorney (financial and personal/health combined) | State Trustees: statetrustees.com.au · 1300 138 672. Free forms via Consumer Affairs VIC. | Two witnesses — one must be authorised (solicitor, barrister, JP, medical practitioner) |
| SA | Enduring Power of Attorney + Advance Care Directive (for medical) | Office of the Public Advocate: opa.sa.gov.au · 1800 066 969 | Two adult witnesses — one must be a prescribed witness (JP, solicitor, medical practitioner) |
| WA | Enduring Power of Attorney (financial) + Enduring Power of Guardianship | Public Trustee WA: publictrustee.wa.gov.au · 1300 746 212 | Two witnesses — one must be authorised (solicitor, JP, or medical practitioner) |
Cost: DIY forms from the Public Trustee or Consumer Affairs are free or low cost ($20–$50). Using a solicitor costs $200–$500 for a straightforward enduring POA — worthwhile for complex situations or large estates. Avoid online-only services that provide no independent legal advice.
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Safeguards
Limits on what an attorney can do — and what to do if they misuse their power
| Restriction | Detail |
|---|---|
| Must act in the donor's best interests | An attorney cannot use their power for their own benefit — they must act in the donor's best interests at all times. This includes not gifting the donor's assets to themselves or others without specific authorisation in the document. |
| Cannot make a will | An attorney cannot make, alter, or revoke a will on behalf of the donor. |
| Cannot vote | An attorney cannot vote on behalf of the donor. |
| Financial records | Attorneys managing finances should keep detailed records of all transactions. The donor (if still capable), family members, or the Public Trustee can request an account of how the power has been exercised. |
If you suspect an attorney is misusing their power — e.g. using the donor's funds for their own benefit, making decisions against the donor's interests — contact your state's Civil and Administrative Tribunal or the Public Trustee immediately. Each state has a guardianship tribunal that can review and revoke powers of attorney and appoint an independent administrator. This is elder financial abuse and is taken seriously.