Appointing a power of attorney, last will & advance care directive
Learn about last wills, advance care directive & power of attorney. Find out how to easily set up a power of attorney with Westpac today.
June 2021 – 5 minute read
Key takeaways from this article:
- Will documents
- Powers of attorney
- Appointing a power of attorney agent
- Power of attorney FAQs
When your circumstances change due to serious illness, particularly when you have received a diagnosis of a life-limiting illness, it’s an opportunity to reflect on where you are currently placed financially, who you trust to make decisions on your behalf and ensuring that you have contacted all relevant people and organisations about your situation for support.
After reviewing your finances and insurances, you could benefit from creating, reviewing or appointing a Last Will, power of attorneys, advance care directive. It’s recommended that you seek advice from a solicitor when setting up the following:
Your Will documents the split of assets to your loved ones in the way that you would like. Your Will should be stored in a safe location and copies held by your executor and solicitor. It’s important to have an estate plan to help to ease the bereavement experience for your loved ones and make it simpler for them to enact your final wishes when the time comes.
General (Non-Enduring) Power of Attorney (POA)
A power of attorney is a legally binding document that appoints a trusted individual with the permissions to manage your financial affairs and assets while you are alive. The POA assumes that you are able to direct your nominated representative and that they will act as you have instructed for property and financial matters only. Selecting the right person to be your POA could make the difference between having a clear understanding of your financial position or potentially being financially vulnerable. A general (non-enduring) power of attorney will cease to operate if you lose capacity to make decisions yourself. To overcome this, you need to prepare an enduring power of attorney. A general power of attorney may be limited to a specific purpose or for a limited time. This may be useful to you if you wish to put into place a temporary arrangement. For example, you may be planning a trip overseas or will be away from home for an extended period of time and require a trusted individual to manage your financial affairs).
Enduring Power of Attorney (EPOA)
An enduring power of attorney is a legal document in which you appoint another person or persons to make property and financial decisions for you and continues even when you’ve lost legal capacity. Understanding that the EPOA will continue to operate when you have lost capacity, it is good to have informed your attorney of your wishes while you are healthy and aware.
Supportive Power of Attorney (Victoria only)
A supportive power of attorney is a legally binding document authorising a trusted individual to assist you to make and act on decisions about your financial affairs. A supportive attorney can access, obtain or collect and communicate information on your behalf. You could also authorise the supportive attorney to perform activities which are reasonably necessary to implement your decision (not including significant financial transactions). Unlike a power of attorney arrangement, a supportive attorney(s) cannot make decisions on your behalf.
Financial Management Order (FMO)
A financial management order (also known as a financial administration order) is made by a Court or Tribunal where an individual does not have a valid EPOA in place and no longer has legal capacity to make one. A Court of a Tribunal can appoint a family member or a friend as a financial administrator/manager to make decisions on your behalf, or they can appoint a public official from the State Trustee, if appropriate. A FMO may revoke an existing EPOA arrangement.
Disclosure Authority Form (DAF)
A simpler form of the POA is to have a DAF. This form allows a trusted friend, relative or advisor to deal with claims and forms on your behalf. It limits what they can do and does not allow them to make changes, withdraw or sign on your behalf.
Enduring Guardian (EG)
This is the formal appointment of a person to make health, lifestyle and medical decisions on your behalf when you are not able to do it yourself and only becomes effective for the time that you experience incapacity. The enduring guardianship does not permit the nominated person to make financial decisions for you.
Advance Care Plan
If you are aware that the prognosis is long term, complex or terminal, you might like to consider creating your advance care plan. This a guide that you create for your medical professionals and loved ones specifically stating what your wishes are in the event you cannot make or communicate decisions about your medical treatment. Your GP can help you to create an advanced care plan and this plan is best shared with your enduring guardian and attorney, loved ones and treating specialists.
If you pass away, all powers of attorney automatically cease, and the executor of your Will becomes responsible for carrying out your wishes.
If you are unsure who to appoint as your power of attorney, enduring guardian or executor of your Will, contact your State/Territory Public Trustee for further information and assistance.
How to Set up Power of Attorney
When you want to set up a power of attorney or similar arrangement to manage your account(s), you and your attorney(s) will need to come into a Westpac branch, where the branch staff will assist you in completing some paperwork.
What to bring into the branch
It’s recommended you make an appointment to visit a Westpac branch to lodge a power of attorney arrangement and that you allow approximately 45 minutes for this appointment. You will need to bring along the following information for us to set up the arrangement:
- The original, completed power of attorney document, or a certified copy of the power of attorney document by a lawyer or Justice of the Peace
- Identification documents such as a driver’s licence, Australian passport or other government photo identification, or other non-photographic identification.
- Each of the attorneys that you have appointed and whom you wish have access to manage your financial affairs (with their own photographic identification).
- In some circumstances, supporting evidence such as a medical report may need to be provided. For example, if the account holder has lost capacity.
Keep in mind that authorising others access to your finances can increase your exposure to the risk of financial abuse and fraud. For more information, including a support guide and how we can help you, see Protecting you from Financial Abuse.
More information on power of attorney
Please be aware that power of attorney and other similar arrangements are different in each state and territory. Below are support services available that can help you understand and make decisions in relation to managing your financial affairs.
- Australian Government: Powers of Attorney
- Queensland Public Guardian
- NSW Trustee & Guardian
- ACT Public Trustee & Guardian
- Victoria Office of the Public Advocate
- SA Guardianship
- NT Office of the Public Guardian
- WA Office of the Public Advocate
- Tasmania Office of the Public Guardian
Power of Attorney FAQs
It’s important that you only give authority to someone you trust and who will look out for your best interests. Westpac is unable to advise you on who to choose as your power of attorney and it is recommended that you seek legal advice.
Yes. Once the account holder and initial attorney have been set up in a branch (and they have provided identification and relevant documentation which outlines all attorneys to be included), additional attorneys can make an appointment to attend a Westpac branch to be identified and included in the arrangement. The account holder and/or the initial attorney may be provided with a reference number that the additional attorney(s) can take with them to their appointment.
A power of attorney is a legal arrangement that defines the level of access an attorney has over a customer’s account(s) and can be limited to specific types of decisions or transactions. An account signatory has authority to act on the account of which they are a signatory to - similar to the account holder.
For an arrangement such as a power of attorney, the bank has an obligation to ensure the transactions that are undertaken are in the best interests of the account holder. This may mean asking for some additional information.
Power of attorney grants an individual the right to make decisions on another person’s behalf for different reasons including:
1) you're travelling or living abroad
2) you temporarily or permanently lose capacity through illness, injury or disability
3) you wish to have someone else with experience to manage your finances.
Powers may include the right to buy and sell property, operate bank accounts, and more. The power of attorney agent is not always the estate executor responsible for the will, but if they are, they maintain authority over the deceased’s assets until ownership is transferred.
An agent with enduring power of attorney does not have authority to change the terms or interpretation of a will. Only the individual writing the document has this power. If the individual makes changes to their will, the power of attorney agent may be a witness.
You may give power of attorney, or enduring power of attorney, to multiple people. It is best to choose people who can cooperate and work collaboratively in your best interest. You may appoint different attorneys to have the power to act independently, or to require each other’s approval.
The difference between general power of attorney and enduring power of attorney is that enduring power of attorney continues even if an individual is ‘unsound of mind’. Enduring power of attorney gives an individual authority to make legally binding decisions if a person suffers an illness, disability, or is mentally incapable.
You may find these useful
Things you should know
This information is general in nature and has been prepared without taking your objectives, needs and overall financial situation into account. For this reason, you should consider the appropriateness for the information to your own circumstances and, if necessary, seek appropriate professional advice.
© Westpac Banking Corporation ABN 33 007 457 141 AFSL and Australian credit licence 233714.