Guide to Enduring Power of Attorney Personal Care Options

There are a number of optional provisions that you can include in an Enduring Power of Attorney for Personal Care.

This guide looks at the main options within the LawHawk Enduring Power of Attorney, and provides some information on how to use them.

Conditions and Restrictions on Attorney Powers

The attorney can act for the Donor all matters relating to the Donor's personal care and welfare, or only some matters.

If you want the attorney to act on only some matters, you must list what those matters are. You can also state any conditions or restrictions you wish to place on the attorney’s authority to act.

The Donor can set conditions and restrictions on the attorney's powers.

Some possible matters to consider include decisions on whether to change where the Donor lives, whether or not to enter a rest home, and whether or not to accept certain forms of medical treatment.

You need to try and strike a balance between protecting the Donor against foreseeable risks, but giving the attorney enough flexibility to deal with unforeseen circumstances.

Note - Even if you've selected a general power, the attorney will not, under section 98(4) of the Act, be able to act on certain matters. These are:

to make any decision relating to the entering into marriage or civil union by the Donor, or to the dissolution of the Donor's marriage or civil union; or
to make any decision relating to the adoption of any child of the Donor; or
to refuse consent to the administering to the Donor of any standard medical treatment or procedure intended to save the Donor's life or to prevent serious damage to the Donor's health; or
to consent to the administering to the Donor of electroconvulsive treatment; or
to consent to the performance on the Donor of any surgery or other treatment designed to destroy any part of the brain or any brain function for the purpose of changing the Donor's behaviour; or
to consent to the Donor taking part in any medical experiment other than one to be conducted for the purpose of saving the Donor's life or of preventing serious damage to the Donor's health.

Under section 98A of the Act, the attorney’s paramount consideration is the promotion and protection of the Donor's welfare and best interests, while seeking at all times to encourage the Donor to exercise his or her own capacity and act on his or her own behalf to the greatest extent possible.
Selecting this option in the LawHawk interview will include the following provision:

"My attorney's authority to act is subject to the following conditions or restrictions:

(a) [Condition Description].

(b) [Condition Description].

(c) [Condition Description].

Provision for the appointment of Successor Attorney(s)

The Donor can appoint another individual or individuals to be the Donor's attorney in the event that the original attorney’s appointment ceases. If there is no successor appointed, and the original attorney's appointment ends, the power of attorney ceases to apply and a more expensive application would need to be made to the court to appoint a property manager or welfare guardian.

It is generally recommended that a successor attorney be appointed. Appointing a second successor attorney is also quite common, and adds further rigour.

Section 106(1)(c) to (f) of the Act sets out the circumstances when an attorney’s appointment ceases, as follows:

the attorney gives notice of disclaimer in accordance with section 104 of the Act. Disclaimer means that the attorney refuses to accept or continue the responsibility as the Donor's attorney; or
the attorney dies, or is adjudged bankrupt, or becomes a patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 detained in a hospital under that Act, or becomes subject to a personal order or a property order under the Act, or otherwise becomes incapable of acting; or
if the Donor has appointed attorneys with joint authority, one of them dies, or is adjudged bankrupt, or becomes a patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 detained in a hospital under that Act, or becomes subject to a personal order or a property order under the Act, or otherwise becomes incapable of acting; or
a Family Court revokes the appointment of the attorney pursuant to section 105 of the Act.

Selecting this option in the LawHawk interview will include one or more of the following clauses:
"If the appointment of the attorney named in section C ends, I appoint as my first successor attorney the person named below:"
"If the appointments of the attorney named in Section C and my first successor attorney end, I appoint as my second successor attorney the person named below:"
"If the appointments of the attorney named in section C and my first and second successor attorneys end, I appoint as my third successor attorney the person named below:"

Requirements for the Attorney(s) to Consult with Others

When acting on the Donor's behalf under the enduring power of attorney, the attorney must, as far as is practicable, consult with the Donor.

The Donor may specify one or more persons with whom the attorney must, as far as is practicable, also consult when making decisions under the enduring power of attorney. In respect of each of these persons, the Donor must state the personal care and welfare matters on which the attorney is required to consult with them.

The Donor may wish the attorney to consult with these persons on all matters, or only in respect of certain kinds of matters or particular matters. Particular matters might be limited to things like where they live, whether or not to enter a rest home, and whether or not particular medical treatments will be allowed.

If the Donor is happy for their attorney (or successor attorney) to "call the shots" without first seeking advice from particular people, then the consultation obligation won't be required. However, it can be common for donors to require their attorney(s) to consult with particular family members, especially other children where only one child has been appointed as attorney.

If the Donor appoints a separate attorney in relation to the Donor's property affairs, the attorneys must consult each other regularly to ensure that the Donor's interests are not prejudiced through any breakdown in communication between them. An attorney’s duty to consult is set out in section 99A of the Act.

If you select this option in the LawHawk interview the following wording will be added:

"The person(s) I have named below are to be consulted about the matters I have indicated"

Requirements for the Attorney(s) to Provide Information on Exercise of Powers

The Donor has an option to name 1 or more people to keep an eye on their attorney’s actions. The Donor can name as many people as they like.

The attorney must provide them with the information (as listed) about how they are carrying out their EPA duties.This information must be provided straight away when requested.

More often than not, Donors won't require their attorney to give information to other people. However, many donors do like to specify one or two people that their attorney must account to, if requested. This can provide a good check and balance on the decisions that the attorney is marking.

Donors will often name the same person to receive information as they name for consultation. As with consultation, donors can choose to limit the information that must be provided, for instance to information relating to medication or medical treatments, financial transactions (e.g. bank statements) or particular living or care arrangements.

You need to strike the right balance, so that the attorney is not faced with lots of requests for immaterial information.

Selecting this option in the LawHawk interview will include the following clause:

"My attorney must give to the person(s) I have named below the information I have indicated"

Additional Terms and Conditions

It is unusual to include additional terms and conditions, and legal advice should be sought if the Donor wishes to include their own particular terms and conditions.

Selecting this option in the LawHawk interview will add the following clause:

"My EPA is subject to the following additional terms and conditions:"