Power of Attorney

Generally, a person is eligible to be an attorney if they are:

• 18 years of age or older
• not bankrupt and
• not a paid care worker, healthcare provider or accommodation provider for you.

Choosing an attorney is an important decision that you should make after careful consideration. The attorney will also need to be notified of and agree to their appointment.

If you appoint someone as your attorney, they have certain responsibilities and duties they must observe while managing your affairs. The good thing is there is plenty of information and support available to guide your appointed attorney in their role.

The powers and responsibilities of an attorney can vary depending on the type of POA you have made, the state or territory where you live, and your wishes as the principal.

There are two main types of POA:

• General POA: A General POA allows your attorney to make financial and legal decisions, but this power ends if you lose mental capacity. Therefore, an attorney who has been appointed under a General POA must stop acting on your behalf if you lose mental capacity.
• Enduring POA: An Enduring POA allows your attorney to make financial and legal decisions even if you lose mental capacity. Mental capacity means your ability to understand what is going on, make informed choices, and communicate what you have decided. Mental capacity may deteriorate due to dementia, stroke, or various other brain injuries.

Responsibilities of an attorney include acting in your best interests, avoiding conflicts of interest, and keeping accurate records of all transactions and decisions made.

As the principal, you can empower your attorney to do specific things, and you can put limits or restrictions on what your attorney can do on your behalf. You can also stipulate that they can only act for you if certain conditions are met – for example, while you are overseas, or only once you have lost capacity.

One important duty is that an attorney must avoid conflicts between your interests and theirs, unless this has been authorised by you. For example, it may be a conflict of interest for your attorney to nominate themselves as your life insurance beneficiary, unless you have authorised this.

You can appoint an attorney by filling out the appropriate form provided by your state or territory government.

The form needs to be completed, signed and witnessed correctly. There are specific requirements for who can be a witness, depending on your state/territory.

Before we will accept instructions from your attorney, you or the attorney will need to let us know that they have been appointed.

We will then update our records so that the attorney can obtain information and make changes to your policy (within the limits set by you).

Yes. You can revoke a POA at any time provided you have the mental capacity to do so. You will need to let the appointed attorney know in writing and complete a ‘Revocation of Power of Attorney’ form, which should be witnessed in the same way as the original POA.

After revoking a POA, it’s advisable to inform everyone you had notified of the original POA to ensure they are aware of the change. For example, if you previously notified us you had appointed an attorney, you should tell us when the POA has been revoked, so we can remove the attorney’s authorisation.

If you lose mental capacity, revocation becomes more complicated, and you or your loved ones may need to seek legal advice.

A POA becomes invalid if you pass away.

You may find that you need help to manage the affairs of someone who has no POA in place, such as a family member or close friend. This could be because the person has never made a POA, because the person made a General POA but has since lost capacity which means the General POA has ended, or because an existing attorney is unwilling or unable to act.

If the person still has capacity, they can appoint you as an attorney to help manage their affairs. On the other hand, if the person has lost capacity, they will no longer be able to appoint an attorney; instead, to be authorised to manage their affairs, you will need to apply for an administration or financial management order from your State or Territory civil and administrative tribunal.

There are various eligibility criteria which the tribunal needs to be satisfied of before you can be appointed as an administrator or financial manager, such as that you are capable of performing the role and have no conflicts of interest. Once appointed as an administrator or financial manager, you will be required to comply with certain requirements, such as keeping records and lodging accounts. Each State and Territory provides a range of information and support that will help you understand how to discharge your duties.

If there is no suitable person that is willing or able to be an administrator, each State and Territory also has a statutory body that acts as the administrator of last resort. That body can be appointed to manage a person's affairs where the tribunal considers that the person requires an administrator but cannot find someone appropriate amongst the person's family, close friends, or professional advisers.

If you need more information about a POA in your state or territory, there are many online resources. We have listed some relevant links below.

NSW: Power of attorney (nsw.gov.au)

VIC: Powers of Attorney (vic.gov.au)

WA: Powers of attorney (wa.gov.au)

SA: Powers of attorney (sa.gov.au)

QLD: Power of attorney (qld.gov.au)

TAS: Powers of Attorney (tas.gov.au)

ACT: Enduring Powers of Attorney (act.gov.au)

NT: Power of attorney | (nt.gov.au)

If you need advice about appointing an attorney, or if you are an attorney and need guidance in your role, you should consult a lawyer.

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