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Don't have an enduring power of attorney?

It’s important to fully understand the risks of not having an Enduring Power of Attorney before deciding not to make one. 9 min read

Last updated: 10 July 2024

Introduction

As we age, we’re encouraged to set ourselves up for a secure future by planning for it. We plan for our retirement, grow our superannuation, prepare our wills and consider downsizing our homes. We should also make an Enduring Power of Attorney (and any other related documents) to safeguard our decision-making.

What is an enduring power of attorney?

An Enduring Power of Attorney is a document you can write to appoint someone to make decisions for you if you can’t make them yourself. (You may need to write an Enduring Guardianship, Advance Care Directive or other document as well, depending on which state or territory you live in.)
An Enduring Power is different from a General Power of Attorney in that it only takes effect if you lose decision-making capacity.
Having an Enduring Power of Attorney can help protect your rights, quality of life and independence as you age.

Some people ‘never get around’ to making an Enduring Power of Attorney, even though it’s an important part of future planning. Perhaps they don’t fully understand what might happen without one, or they’ve heard only negative things about them. The truth is that making a strong, detailed Enduring Power of Attorney to protect our future is much safer than not making one.

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Benefits of an enduring power of attorney

Having an Enduring Power of Attorney has lots of benefits for ageing Australians, because it can do a lot to protect our rights, privacy and independence later. Not making one can have consequences that put these ‘quality of life’ factors at risk.

If we do make an Enduring Power of Attorney, we can …

get professional, personalised help from a solicitor to write a strong, well-considered document that captures our wishes and preferences and gives clear, detailed directions
thoughtfully and carefully choose someone we know and trust to be our attorney
talk to our chosen attorney now about our wishes and preferences for later, so they can follow them and advocate for us if we ever need them to
say which decisions the attorney can make and how they make them
protect our privacy, dignity and independence
maximise our choices being respected at an important time in our lives.

But if we don’t make one, we can …

have someone who doesn’t know our wishes and preferences making decisions for us
have decisions about every part of our lives being in the hands of someone we don’t know and didn’t choose
be caught up in a protective system that is bigger, stronger and more restrictive than we need, for longer than we need
no longer have the privacy and independence we enjoy now.

The benefits of making an Enduring Power of Attorney are clear, yet some people still avoid making one. One reason could be that their increased awareness of elder abuse might trigger fear of attorneys taking advantage of the authority and power that they are given. However, while that’s certainly a possibility, it’s not the only thing to consider.

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Factors to consider before deciding not to make an enduring power of attorney

The dedicated work of organisations like Elder Abuse Action Australia, along with more research being done into how commonly elder abuse happens, has made us more aware of this important issue. We’ve also heard that an attorney’s appointment gives them power, authority and control.

Attorneys misusing their powers amounts to elder abuse, and this is certainly a risk. However, not making an Enduring Power of Attorney at all has its own risks and potential consequences. There are lots of things we can do to write a document that’s strong, protective and resistant to misuse. Understanding how to do that, and how to choose attorneys you can trust, helps to reduce the risk of attorney misuse.

What other factors should we consider before deciding not to make an Enduring Power of Attorney? Let’s look at the main ones.

1. Unexpected changes to decision-making capacity

An Enduring Power of Attorney can protect our independence and dignity if our decision-making capacity is unexpectedly affected. The problem is that most of us find it hard to imagine ourselves in a situation where we need support to make decisions.

We tend to think that having an accident or developing a medical condition ‘won’t happen to me’. As a result, we don’t stop to think about the possibility of losing our decision-making capacity and what it would mean for us if something did happen.

The reality is that at any time, something might put us in need of a decision-maker. It could be sudden, or it could begin gradually. For example:

low energy levels, changes in blood pressure or confusion from pain medication could lead to multiple falls (would we be able to continue living alone?)
an infection could cause delirium (how would we agree to medical treatment?)
a stroke or dementia could severely affect our mental capacity (how would we pay our bills and ensure we had somewhere secure to live?)
an accident could not only affect our decision-making capacity, but also mean new decisions need to be made (who would decide what care services we get?)

We can’t know for sure if, or when, something will happen to us, and we can’t anticipate the complex decisions that would follow a particular event. But any change in our health means new needs arise and new decisions have to be made. What if we were unable to make them ourselves?

Writing an Enduring Power of Attorney will mean that someone we chose and trust is ready and able to help us and make sure our wishes and preferences are acted on.

The chances that something could affect our decision-making capacity are surprising! Take a look at this short video from the Office of the Public Guardian in Queensland.

Think, too, about the possibility of starting to need some day-to-day practical support at home from aged care services, like allied health providers or housekeeping help. To get this help, we’d need to navigate complex care systems and register for assessments (My Aged Care is the main example). That would be quite enough to deal with – and certainly not a good time to start making an Enduring Power of Attorney as well!

Remember, we can only make an Enduring Power of Attorney while we have decision-making capacity. If we wait until we lose capacity and then need support and protection, it will be too late to make one. And without the limits, instructions and authorisations we set out in a thoroughly planned and well-written document, we’ll be more vulnerable to other forms of elder abuse. Attorney misuse would be the least of our worries.

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2. Effect on our personal privacy

Another thing to consider is that generally, we live our lives quite privately. We choose our own friends and social networks. We select our advisors, like our doctor, accountant, bank and financial planner. We can keep our personal lives and information as private as we like, too.

If a health event happened unexpectedly and we didn’t have an Enduring Power of Attorney, the public guardianship system may be called in to appoint a decision-maker for us. That guardian might be someone we don’t know, and if so, our level of personal privacy would be affected.

What is the public guardianship system?

The public guardianship system protects people who can’t manage their affairs for themselves, for various reasons.
It was established by state and territory governments as a safety net for people who are vulnerable, including children, older Australians and people with intellectual disabilities, among others.
It involves the guardianship laws, associated tribunals and public agencies in each of the states and territories.

Sometimes this system meets our needs quite simply. For example, many of the processes for making health care decisions allow a family member or friend to step in if necessary. Guardianship laws often permit informal decision-making by people we know and want to have help us.

However, it’s a relatively easy process for someone to have a state or territory tribunal formally appoint a decision-maker for us. Our health professionals, care providers, friends or family members can apply to the tribunal if they are worried about our decision-making ability, how we’re managing or the job our informal supporters are doing. The tribunal will appoint a guardian if they agree with the application.

Guardians, administrators, financial managers …

Different names are used for ‘guardian’ in different states and territories across Australia, including ‘administrator’ and ‘financial manager’.
For simplicity, in this article we use ‘guardian’ to mean any kind of decision-maker appointed for someone else.

This is a great safety net, but the downside is that the appointed guardian may not be someone we know, trust and would have chosen ourselves. It may even be the state or territory’s Public Guardian, Public Advocate or Public Trustee, rather than an individual person. While those agencies will do their best to help us, it does mean that our decision-maker might not be someone who knows us well and respects our preferences and wishes.

Would we prefer to maintain our privacy and have control of who makes decisions for us if we become unable to make them ourselves? If the answer is ‘yes’, then making an Enduring Power of Attorney – a well-thought-out and detailed document that records our specific wishes and preferences – means our privacy and control won’t be at risk.

3. Allowing for changing preferences

Our decision-maker may need to act on any and every aspect of our lives. So, a tribunal-appointed guardian could mean someone who doesn’t know us will make decisions about all kinds of personal matters:

where we live (and with whom)
who visits and phones us (and who can’t)
what we do each day (and don’t)
whether we go out (and where to)
how much ‘spending money’ we can have (and what for).

We can review and, if we like, change our Enduring Power of Attorney any time while we still have capacity – every 2 years is a recommended minimum. So once we’ve written one, we can make sure it continues to reflect everything we want as time goes by.

However, an appointment made by a tribunal will likely be in place for a long time, often from 2 to 5 years. The tribunal may schedule automatic reviews, to check that the guardianship is working well, but a review takes time and effort. It’s also possible for a guardianship to be challenged, removed or changed, but few people know what the process is, and it can be difficult to undertake without professional help.

If we’d prefer to choose for ourselves who will make our decisions for us, which decisions they can make, and how they should make them, a well-written Enduring Power of Attorney will greatly reduce the risk of our decisions not being made as we’d like.

Safeguarding your future with an enduring power of attorney

When we choose to make an Enduring Power of Attorney, we can appoint decision-makers we know, trust and are comfortable with. We can include detailed instructions about how we want our decisions made and set limits on what can and can’t be decided for us.

We can even get personalised guidance from a solicitor or other professional when we write the document. This will make sure it’s as strong, comprehensive and detailed as possible, to minimise the risk of elder abuse if it ever came into effect.

Not making an Enduring Power of Attorney might sound like a good way to sidestep the risk of elder abuse through attorneys misusing their power. But if we don’t have one in place and something happens so that we need a decision-maker, we’ll be vulnerable to other –more probable – risks.

Be the best friend for your future self. Rather than not make an Enduring Power of Attorney at all for fear of attorneys misusing their power, be proactive and prepare your own robust ‘safety net’ that fits your needs and circumstances. With time, research, careful consideration and professional help, you can use your future planning to reduce the chances of elder abuse.

Tips for making a strong Enduring Power of Attorney

Make sure you understand Enduring Powers of Attorney, how they work and what an attorney’s responsibilities are. Start by reading our ‘Powers of attorney’ section.
Take some time to think carefully about who you can trust in the role of attorney or enduring guardian and whether they’re suitable. For help with this, read our article ‘Choosing an attorney’.
Consider appointing more than one attorney, according to what’s possible in your home state or territory.
Put some thought into the kinds of decisions you make now and how you’d like them to be made for you if it became necessary.
Talk with your proposed attorneys now, while you’re still well, about your wishes, values, preferences and what is important to you. Show them our ‘Being an attorney’ article.
Get your solicitor’s advice to write your Enduring Power of Attorney in a way that will help to ensure your views and preferences are respected and followed. Include guidelines and limits, if appropriate, on what the attorney(s) can do.
Watch this Compass video, ‘7 things to think about when making an Enduring Power of Attorney’, for more tips.

And share this video with your attorney(s). 7 things to think about when taking on an Enduring Power of Attorney Role

Disclaimer: The information provided on this website is not a substitute for individual legal advice.

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