If you would like someone such as your spouse, partner or a family member to act on your behalf and manage your affairs, then you can give a person these powers under a Power of Attorney (POA). 

If you ever suffer a serious illness or accident and are unable to speak for yourself and you don't have an Enduring Power of Attorney in place, then a Court can appoint someone to manage your affairs. If this happens, you will have little say and no control over the process. An Enduring Power of Attorney allows you to choose the person that you want to handle your affairs, for a time in the future when you will be most vulnerable.  

1. What is a Power of Attorney?

A Power of Attorney is a legal document that a person uses to appoint another person (called an 'Attorney') to manage their affairs, make decisions and sign documents on their behalf. Depending on the type of Power of Attorney, this may include the power to control your financial, legal, medical and personal affairs. 

A person that appoints another person to make decisions on their behalf is called the 'Principal' (or in some states, the 'Donor'). The person that is appointed to act on another person's behalf is called an 'Attorney.' This is an expression and it does not mean that the person is a Solicitor or Lawyer. 

In general, there are 2 main types of Powers of Attorney, a General and Enduring Power of Attorney. 

2. General Power of Attorney

A General Power of Attorney gives another person the power to manage your property, financial and legal matters for a limited time only. Things an Attorney can do under a General Power of Attorney include transferring property, signing documents and managing bank accounts. 

A common use for a General Power of Attorney is giving a person the power to purchase land for you whilst you are overseas. If you want your Attorney to deal with land under a General Power of Attorney, then you must register the Power of Attorney with the land titles office in the state or territory where the land is held before the transaction.  

A General Power of Attorney ceases to have effect if you become a person with impaired decision-making ability. A General Power of Attorney is known as a limited power because the power automatically ends once you are unable to make your own decisions. 

Under a General Power of Attorney, you cannot appoint someone to manage your medical, health care or personal matters. Some examples of medical and health care matters include things like consenting or refusing particular medical treatment and legal matters relating to health care. Some examples of personal and lifestyle matters include things like deciding where a person lives, what they eat and what they wear. 

You can specify a date for the power to begin and end (if you so choose). You may cancel a General Power of Attorney at any time whilst you still have capacity. 

3. Enduring Power of Attorney

An Enduring Power of Attorney (EPA) gives another person the power to manage your financial, legal, personal or medical matters and continues to operate if you become a person with impaired decision-making ability. 

You can specify or limit the types of decisions you would like your Attorney to make under an Enduring Power of Attorney. For example, you can appoint a person to manage only your medical and personal matters and not financial or legal matters.  

In some states, such as NSW, you cannot appoint a person to make medical or personal decisions under an EPA. You can appoint a person to make these types of decisions under an Enduring Guardianship. This person is then referred to as your 'Guardian' and not your Attorney.  

An EPA can come into effect either immediately when you lose capacity, on a certain date or on the happening of an event. 

4. Powers of Attorney by state

Each state and territory of Australia has specific power of attorney laws and therefore different requirements and forms. For more information about power of attorney documents specific to your state or territory, click on your state below: 

New South Wales. . .

Powers of Attorney are governed by the Powers of Attorney Act 2003 (NSW). A General Power of Attorney is used to appoint a person to make your financial/legal decisions and is automatically cancelled if your decision making ability becomes impaired. An Enduring Power of Attorney can be used to appoint a person to make financial and legal decisions and continues to operate if your decision making ability becomes impaired. An Enduring Power of Attorney only authorises an Attorney to act in relation to legal and financial matters. If you want someone else to make your medical or personal decisions when you are no longer able to make your own decisions, then you must appoint a Guardian using an appointment of Enduring Guardian form.

Victoria. . .

Powers of Attorney are governed by the Powers of Attorney Act 2014 and the Medical Treatment Act 1988. The Act has undergone numerous amendments since its enactment. A General Power of Attorney is now called a 'Non-Enduring Power of Attorney.' A General Non-Enduring POA is used to appoint a person to make your financial/legal decisions and is automatically cancelled if your decision making ability becomes impaired. An Enduring Power of Attorney is used to appoint someone to manage your legal, personal and some medical matters and will continue to operate if your decision making ability becomes impaired. An Attorney can consent to medical treatment, but cannot refuse medical treatment on behalf of the princiapl. If you want your Attorney to be able to refuse medical treatment on your behalf, then you must appoint an Agent under an Enduring Power of Attorney (medical treatment).

Queensland. . .

Powers of Attorney are governed by the Powers of Attorney Act 1998. There are 2 main types of Powers of Attorney, a General and Enduring Power of Attorney. A General Power of Attorney is used to appoint a person to make your financial/legal decisions and is automatically cancelled if your decision making ability becomes impaired. An Enduring Power of Attorney can be used to appoint a person to make financial, medical and personal decisions and continues to operate if your decision making ability becomes impaired. There is a long form and short form of an Enduring Power of Attorney. The short form is used when you want to appoint an Attorney or Attorneys for the same types of matters. The long form is used when you want to appoint different Attorneys for different types of matters. For example, you may want to appoint your father to handle your legal affairs and your mother to make decisions about your medical treatment and personal matters.

Australian Capital Territory. . .

Powers of attorney are governed by the Powers of Attorney Act 2006 (ACT). There are 2 main types, a General and Enduring Power of Attorney. A General Power of Attorney is used to appoint a person to make your financial/legal decisions and is automatically cancelled if your decision making ability becomes impaired. An Enduring Power of Attorney can be used to appoint a person to make financial, medical and personal decisions and continues to operate if your decision making ability becomes impaired. With the new changes to the legislation, you can also appoint a person to make decisions about your particpation in medical research and experimental health care if you suffer a serious accident or illness and are unable to speak for yourself.

Northern Territory. . .

Powers of attorney are governed by the Powers of Attorney Act (NT). There are 2 main types of Powers of Attorney, a General and an Advanced Personal Plan. A General Power of Attorney is used to appoint a person to make your financial decisions and is automatically cancelled if your decision making ability becomes impaired. An Advanced Personal Plan can be used to appoint a person or people to make financial, medical and personal decisions and continues to operate if your decision making ability becomes impaired. You can also give specific directions about your medical treatment to your medical treatment providers at the end of your life. The Advanced Personal Plan replaced enduring power of attorney in the Northern Territory in 2014.

South Australia. . .

Powers of Attorney are governed by the Powers of Attorney and Agency Act 1984 (SA). In SA, there are 3 main types of Powers of Attorney, a General and Enduring Power of Attorney and an Advance Care Directive (ACD). A General Power of Attorney is used to appoint a person to make your financial/legal decisions and is automatically cancelled if your decision making ability becomes impaired. An Enduring Power of Attorney can be used to appoint a person to make financial decisions and continues to operate if your decision making ability becomes impaired. An Enduring Power of Attorney does NOT cover medical/health care and/or lifestyle/personal matters. An ACD can be used to appoint a person to make medical, personal and lifestyle decisions only if your decision making ability becomes impaired.

Tasmania. . .

Powers of Attorney are governed by the Powers of Attorney Act 2000 (Tas). There are 2 main types of Powers of Attorney, a General and Enduring Power of Attorney. A General Power of Attorney is used to appoint a person to make your financial/legal decisions and is automatically cancelled if your decision making ability becomes impaired. An Enduring Power of Attorney can be used to appoint a person to make financial and property decisions and continues to operate if your decision making ability becomes impaired. A General or Particular Enduring Power of Attorney is used when you want to give your Attorneys specific directions or to place conditions on your Attorneys. An enduring attorney cannot make medical or personal decisions on your behalf. You must appoint an Enduring Guardian if you want another person to make your personal or medical/health care decisions when you do not have the capacity to do so.

Western Australia. . .

Powers of Attorney are governed by the Guardianship and Adminstration Act 1990. The main types of Powers of Attorney are a General and Enduring Power of Attorney and an Enduring Guardianship. A General Power of Attorney is used to appoint a person to make your financial/legal decisions and is automatically cancelled if your decision making ability becomes impaired. An Enduring Power of Attorney can be used to appoint a person to make financial and decisions on another person's behalf and will continue to operate if the Donee's decision making ability becomes impaired. A Power of Attorney cannot be used to appoint a person to make someone else's medical, personal or lifestyle decisions. If you want to appoint a person to make your medical, personal or lifestyle decisions, then you must complete an appointment of enduring guardian form.

For more information about powers of attorney specific to each state, you can download the kit or complete your POA online, which includes important information specific to each state and territory. 

5. Legal capacity

You cannot make a Power of Attorney on behalf of another person. You can only make your own Power of Attorney. If you make a Power of Attorney for someone else (and you are not that person's Lawyer), it will not be valid. Appointing yourself as an Attorney under a POA is considered fraud and has very serious consequences, such as terms of imprisonment. 

You must have capacity in order to make a valid Power of Attorney. This means that you are over 18 years of age and you know and understand what you are doing.

Capacity is a legal concept. A person is presumed to have capacity unless there is evidence to the contrary. If there is evidence to the contrary, then whether a person has capacity is a matter to be decided by a qualified person. The legal test that will be applied, is whether you:

  • know and understand what you are doing,
  • understand the decisions you are making and
  • understand the consequences of those decisions.

Capacity is also relevant in terms of when a power of attorney may begin and end. For example, an EPA will continue to operate if you become a person with impaired capacity, whereas a General Power of Attorney is automatically cancelled if this happens. 

6. Choosing your Attorney

It is up to you to choose the person that you would like to appoint as your Attorney. You can appoint a friend, relative or other trusted advisor. Your Attorney must be: 

  • Over 18 years of age
  • Someone that you trust
  • Able to understand what the appointment means
  • Capable of managing your affairs (i.e. be good with money)

Your Attorney must not be:

  • Bankrupt or insolvent
  • Your paid carer or healthcare provider
  • Your service provider at a residential retirement village. 

7. Powers and limitations

You can specify exactly what types of matters you would like your Attorney to handle in your POA. For example, you might want to give your Attorney the power to deal with your financial and legal matters but not your medical and personal matters. You can also appoint a different Attorney for each type of matter. For example, you can appoint one person to manage your financial affairs and another person to manage your personal and health care matters. 

You can also place restrictions and limitations on your Attorney. For example, you may have a company and you do not want your Attorney to have the power to deal with this company. 

8. Signing your POA

Different types of powers of attorney have specific signing requirements.  In general, you should sign your POA in the presence of a witness. Whether this must be a qualified witness depends on the type of POA. However, usually a Solicitor or Justice of the Peace (JP) will be sufficient. There is an exception to this rule if you are in NSW. In NSW, a JP is not authorised to witness an EPA. An EPA in NSW must be witnessed by either a Lawyer, Barrister or Licensed Conveyancer. 

An EPA must be signed by the Attorneys accepting the appointment. An EPA does not start until the appointed Attorneys have signed the acceptance of the EPA. 

9. Storing POA

A POA is an important document and you should give your Attorneys the original or a certified copy and store a certified copy in a safe place. This may be in a safety deposit box at a bank, or at home where you keep other important documents, such as your Will. 

10. Registering a POA

In some circumstances, a power of attorney may need to be registered with the land titles office in your state or territory. A power of attorney must be registered if you want your Attorney to deal with real estate, land or property. 

In order to register a POA, you should contact the land titles office in your state or territory. You must complete an application form and send the POA document to the land titles office. The office will stamp and return your document to you. There is usually a small fee to register a POA. 

11. Cancelling your POA

You can cancel your POA at any time as long as you have capacity. A Power of Attorney can be cancelled either expressly, by creating a Revocation of a Power of Attorney, or impliedly, by certain conduct. 

An EPA is automatically cancelled:

  • upon your death
  • when you marry (unless your new spouse is your Attorney)
  • when you divorce (if your Attorney was your spouse)
  • when you appoint a new Attorney
  • if your Attorney dies or loses decision-making capacity
  • if your Attorney becomes unqualified, for example, bankrupt or a paid health care provider.



This article contains information of a general nature only and is not specific to your circumstances. This is not legal advice and should not be relied upon without independent legal or financial advice.

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