Guide to Enduring Power of Attorney Property Options

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

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 Donor can appoint an Attorney to act generally in relation to the whole or a specified part of the Donor's property affairs, or to act in relation to specified things on the Donor's behalf.

If the Donor wants the attorney to act on only a specified part or in relation to specified things, this must be stipulated in the EPA. The Donor can also state any conditions or restrictions he/she wishes to place on the attorney’s authority to act.

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 one or more successor attorneys to act if their attorney's appointment ends. 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, as an attorney could become unable to act in a variety of ways, from incapacity, to death, to bankruptcy.

Selecting this option in the LawHawk interview will include one or more of the following clauses:

"If the appointment of an attorney named in section C ends, I appoint as my first successor attorney the person named below:"

"If the appointment of an attorney named in Section C ends or the appointment of my first successor attorney ends, I appoint as my second 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 property 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.

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. Where the Donor only wants their attorney(s) to consult on certain "big ticket" items, such as the sale of the family home, then they can specify this.

If the Donor appoints more than one attorney, and allows them to act "severally", one possible protection would be to include a requirement that the attorneys consult with each other (to the extent practicable) and that tell each other of any separate decisions.

If the Donor appoints a separate attorney in relation to the Donor's personal care and welfare 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 the Exercise of Powers

Donors will often name the same person to receive information as they name for consultation, and doing so may ensure the consultation is as effective as possible. As with consultation, donors can choose to limit the information that must be provided, for instance to information relating to sale of significant property like the family home, or particular financial records like bank statements.

The person to be informed could be a professional advisor (e.g. a lawyer) who can then check bank statements for any apparent problems.

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"

Authority for Attorney(s) to use the Donor's Property to Provide Celebratory Gifts or Charitable Donations

The Donor can authorise the attorney(s) to use the Donor's property to provide celebratory gifts or charitable donations.

Selecting this option in the LawHawk Interview will include options to include the following clauses:

"-I authorise my attorney to provide out of my property celebratory gifts of not more than the following maximum value to the following people, including any that are born after the date on which this EPA was signed:(tick those that apply):
- my spouse or de facto partner;
- my children;
- my grandchildren;
- my nieces and nephews;
- my great grandchildren;
- other people: (specify)
Maximum value of each gift $

- I authorise my attorney(s) to make out of my property annual donations of the following amounts to the following charities:
[Amount $ [ ] to [ ]]
[Amount $ [ ] to [ ]]
[Amount $ [ ] to [ ]]"

Additional Terms and Conditions

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

Some things which may be covered off in the Additional Terms section include:

- authorising the attorney to make more substantial gifts, including to continue any gifting programme relating to a trust or person (and how that is to be done);
- authorising the attorney to make specific gifts to a person (e.g. a child with particular needs);
- terms relating to investments of assets;
- terms changing how successor attorneys are to be appointed (e.g. more than appointed one at a time), and how they are to operate (e.g. jointly)
- specific authorisation of a professional (e.g. lawyer, accountant) attorney to be able to charge for their attendances.