Enduring power of attorney checklist - ACT

Think about each point before you start to complete your Enduring Power of Attorney form and make notes of your preferences, questions and decisions.

Tick the boxes once you’ve completed each step.

Please be aware this checklist is not a substitute for legal advice.

1. Get ready

Knowing as much as possible about an Enduring Power of Attorney (EPA) before you start to make one will make the process easier.

• Compass ‘Introduction to enduring power of attorney’

• Compass ‘Powers of attorney in the Australian Capital Territory’

• Public Trustee and Guardian ‘Enduring powers of attorney’

• Public Trustee and Guardian ‘The power to choose: Your guide to completing an enduring power of attorney’ booklet

• ACT Law Society ‘Making an enduring power of attorney fact sheet’ webpage

• ACT Powers of Attorney Act 2006

If you’re unsure about any of these, visit the Compass ‘Helpful terms to know’ webpage or the Public Trustee and Guardian.

• Principal (you, the person making the power of attorney)

• Attorney or Enduring Attorney (the person you appoint under a power of attorney to make decisions for you)

• Substitute attorney or Alternative attorney (someone you appoint to act only if your appointed attorney is unable or unwilling to act when needed)

• Capacity or Legal capacity or Decision-making capacity (your ability to make your own decisions or to understand the nature or effect of the decisions you make in relation to your affairs)

• Impaired decision-making capacity (your inability to make your own decisions)

• General Power of Attorney (a legal document that authorises an attorney to make financial and legal decisions on your behalf, while you still have capacity usually for a specific time)

• Enduring Power of Attorney (a legal document that authorises one or more attorneys to make personal care, health care, medical research, and financial or property decisions on your behalf if you lose capacity)

• Act separately (when 2 or more attorneys are appointed and may make decisions on their own, although they should consult the others)

• Act together (when 2 or more attorneys are appointed and must all make decisions together)

• Act together and separately (when 2 or more attorneys are appointed and can make decisions either on their own or together)

• Revoke (cancel)

• Compass ‘Powers of attorney in the Australian Capital Territory’

• Public Trustee and Guardian ‘The power to choose: Your guide to completing an enduring power of attorney’

• If so, an EPA is the right option for your needs.

• If you still have legal capacity but want your legal and financial decisions to be looked after, perhaps for a set period of time (for example, if you are in hospital or travelling overseas), you should make a general power of attorney.

• The general power of attorney form is available in PDF and Word formats from the Public Trustee and Guardian’s ‘Publications and forms’ webpage.

• One is an advance care plan statement of choices, in which you or your attorney can record your health care decision preferences for the information of your medical professionals. This option is informative, rather than legally binding.

• The other is a health direction, which allows you to give specific instructions to refuse, or require withdrawal of, medical treatments and procedures. This form must be witnessed by 2 adult witnesses.

• Find out more about these options on the Advance Care Planning ‘Create your plan in the Australian Capital Territory’ webpage.

If you’ve ticked all those boxes, you should feel confident you have all the information you need.

Move on to the next list.

• You are over 18 and

• you understand the nature and effect of making a power of attorney and

• you currently have legal capacity to make your own decisions.

There is a lot of support and assistance available to people who are making their EPAs. The next list will help ensure that you know who you can contact for advice and help.

• If you don’t currently have a lawyer, you can find one via the ‘Find a Lawyer’ search on the ACT Law Society website.

• Older Persons ACT Legal Service (OPALS), a confidential and specialised service within Legal Aid ACT

Now you should be ready to start making your EPA.

2. Get started

The best way to make your EPA is to complete the official form, which is available on the Public Trustee and Guardian website.

Before you start filling in the form, read through it and the information attached to it. The form includes explanations and tips to help you complete it, but you may still think of questions you want answered. Write down any questions you have if they’re not answered in the form.

• Compass ‘Powers of attorney’ webpage

• ‘You decide who decides: making an enduring power for financial decisions’, a booklet compiled by the Australian Guardianship and Administration Council and available on Compass (PDF, 2.5 MB)

• Public Trustee and Guardian ‘The power to choose: your guide to completing an enduring power of attorney’ booklet (PDF, 2 MB)

• your lawyer

• your accountant

• trusted family members

• close friends whom you trust.

You’ll need to decide who you’d like to be your attorney(s). Remember that in the ACT you can appoint more than one person to act as your attorney, and you can also appoint substitute attorneys in case one cannot act when needed. To appoint someone as an attorney or substitute attorney, you must get their written acceptance of the role in the EPA form.

• Family members (it doesn’t have to be your closest relative, if you don’t believe they are suitable)

• Close friends

• Neighbours

• Your partner (however, you should consider their own age and decision-making capacity; read more about partners as attorneys here)

• Your lawyer or accountant

• Public Trustee and Guardian (for personal care, health care and medical research decisions only)

• They are over 18 years old.

• They are not bankrupt (if they are to manage property decisions for you).

• They have full decision-making capacity.

• You trust them.

• Compass ‘Being an attorney’, webpage

• Public Trustee and Guardian ‘The power to choose: your guide to completing an enduring power of attorney’ booklet, pages 9 to 12 and schedule 2, pages F9 to F11 (PDF, 2 MB)

• Australian Guardianship and Administration Council ‘You decide who decides: making an enduring power for financial decisions’ booklet, section 1 ‘Choose someone you trust’ (PDF, 2.5 MB), pages 15 to 20

• If the person you’ve chosen doesn’t agree, consider someone else and talk to them about it.

• If they do agree, they will need to sign your completed EPA form in section 12.

• together (i.e. all attorneys must make decisions together)

• separately (i.e. any one attorney may make decisions on their own)

• together and separately (i.e. they can make decisions either on their own or together)

• or in any particular manner that you want.

• If an attorney is unable to act for you and you have lost your legal capacity, you won’t be able to appoint a replacement attorney then. You need to decide it now.

• Have you considered appointing substitute attorneys as well? They can act for you if the other attorney cannot.

• Do you want your attorneys to be able to authorise someone else to perform some of their tasks as attorney? (You’ll indicate whether you do or not in section 4 of the form.)

Next, decide on the details of your EPA and how you would like it to work for you.

• In relation to property and financial decisions, you can state that your EPA will take effect immediately, or from a specific date or event, or only if you lose decision-making capacity.

• For all other matters, the EPA can only come into effect if you lose decision-making capacity.

• Personal care matters: for example, where you live and who with, any work or education you undertake, any legal matters relating to personal care (not including health care matters)

• Property and financial matters: for example, paying bills, transacting real estate, carrying on a business

• Health care matters: for example, consenting to or withdrawing medical treatment, handling legal matters relating to health care

• Medical research matters: for example, your participation in approved medical research, such as a clinical trial or survey

• Are there any other specific matters you’d like an attorney to manage?

• For more details on these options, look at the ‘Guidelines for completing an enduring power of attorney’ on pages F13 to F14 of the Public Trustee and Guardian’s booklet, ‘The power to choose: your guide to completing an enduring power of attorney’ (PDF, 2.5 MB).

• Should your attorney(s) notify someone (for example, your lawyer or bank) that the EPA is taking effect before they make any of your decisions?

• Do you authorise your attorney(s) to give gifts from your finances or donations to charity?

• Can your attorney(s) use your money to meet the needs of your dependants, such as paying for rent, food, education or medical care?

• Have you thought about requiring your attorney(s) to submit your accounts to your accountant every year?

• Are there any specific instructions about personal care, financial or property, health, or medical research matters that you’d like to record?

• The EPA form has space for the details of up to 2 attorneys and 2 substitute attorneys. You can insert additional boxes to add more if you’re using the Word version of the form.

• You will need to have ready the full names and current addresses of all people when completing the form.

Once you have thought through all your preferences and found answers to your questions, you should be ready to fill in the EPA form.

3. Complete the form

The EPA form is in PDF format. You can fill your form in on a computer if you have a PDF-editing program, such as Adobe Acrobat Reader (a free program—download from the Adobe website, or if you convert the downloaded PDF form to a Word document. Note that you’ll still need to print the completed form when you are ready to sign it.

How to save the PDF form as a Word document:

• Open the PDF form in Acrobat Reader, then click on the File menu at the top of the window.

• Move your mouse down to ‘Export to’, then across to ‘Microsoft Word’, then ‘Word document’.

• In the dialogue box that opens, choose where to save the form. Make sure the ‘Save as type’ in the lower part of the dialogue box is showing ‘Word Document (*.docx)’. (If your computer or Word software is an older version, you may need to save the form as ‘Word 97–2003 Document (*.doc)’ instead.)

• Click ‘Save’.

• Now you should be able to work on the form in Word and add extra space where you need it.

Alternatively, you can print the blank form to fill it in by hand with a pen. If you need to add extra lines or spaces to the form, do that before you print it.

If you are completing the form on paper, you might like to think about printing 2 copies: one as a draft that you can change and make mistakes on, the other to become the final, unaltered copy.

• You might find it helpful to have a copy of the Public Trustee and Guardian’s booklet, ‘The power to choose: your guide to completing an enduring power of attorney’ (PDF, 2.5 MB)

• The introduction text on the form says that you may change the look of the form (for example, add more lines or blank boxes where you need them). This is difficult to do with a PDF document, so if you need to change the form, we recommend that you save a copy as a Word document and work on that.

• Write your full name and home address in the first set of boxes.

• Record the name(s) and address(es) of your chosen attorney(s) in the following boxes as ‘Attorney 1’ and ‘Attorney 2’.

• If you are appointing only one attorney, cross out and initial (or, in Word, completely delete) the ‘Attorney 2’ boxes.

• If you are appointing more than 2 attorneys, add more boxes to record the same details for the additional attorneys. Do this by placing your cursor in the last box in each set and clicking ‘Tab’ on your keyboard. Number each attorney consecutively and save the form as you go.

• At ‘Attorney 3’, write the name and address of any substitute attorney you wish to appoint. (If you nominated more than 2 attorneys in the previous section, you’ll need to change the numbers of the substitute attorneys listed in this section.)

• If you are appointing only one substitute attorney, cross out and initial (or, in Word, completely delete) the ‘Attorney 4’ boxes on the following page.

• If you are appointing more than 2 attorneys, add more boxes to record the same details for all additional attorneys. Do this by placing your cursor in the last box in each set and pressing ‘Tab’ on your keyboard. Number each attorney consecutively and save the form as you go.

• If you do not wish to appoint any substitute attorneys at all, cross out all of section 2 and initial the crossing-out.

• If you have appointed only one attorney, or one attorney and one substitute, this section will not apply. Cross out all of section 3 and initial the crossing-out.

• If you have appointed more than one attorney or substitute attorney, tick whichever box indicates how you want them to make decisions: together (i.e. all must make decisions together), separately (i.e. any attorney can act on their own), together and separately (i.e. attorneys can either decide together or act on their own), or in any other way you prefer.

• Cross out any options that don’t apply and initial the crossing-out.

• The person your attorney authorises must meet the eligibility criteria that applied to your attorney(s) and must be someone you also know.

• If you do not want your attorney(s) to be able to authorise someone else to undertake any of their tasks as an attorney, tick the first box. Cross out the other 2 options and initial the crossing-out or, in Word, delete the other 2 options.

• If you do want your attorney(s) to be able to authorise someone else to undertake any of their tasks as an attorney, cross out the first option and initial the crossing-out or, in Word, delete the first option. Move on to the other 2 options.

• Next, tick a box to indicate whether you want the authority to cover any of the matters your attorney(s) can manage or only some of them. Cross out the option you don’t want and initial the crossing-out or, in Word, delete the unwanted option completely..

• If you want the authority to cover only some of the matters your attorney(s) can manage, write what those matters are on the blank lines. Add more lines in Word if you need them.

• Tick whichever boxes indicate the matters you authorise your attorney(s) to manage on your behalf.

• Do not delete any boxes or text from this section in Word. Instead, cross out any matters you do not authorise them to manage for you and initial the crossing-out.

• Tick the boxes that indicate the matters for which you want to record any instructions, limits or conditions for your attorneys to follow.

• Then, for each matter, record the specific instructions, limits or conditions on the blank lines. You can add more lines in Word if you need them.

• Do not delete any boxes or text from this section in Word. Instead, cross out any options that do not apply and initial the crossing-out.

• If you do not want your attorney(s) to be able to refuse or withdraw medical treatment on your behalf, tick the first box. Cross out the other 2 options and initial the crossing-out, or delete the unwanted options in Word.

• If you do want your attorney(s) to be able to refuse or withdraw medical treatment on your behalf, cross out the first option and initial the crossing-out or delete the first option in Word. Move on to the other 2 options.

• Then, tick a box to indicate whether you want your attorney(s) to be able to refuse or withdraw medical treatments generally or only some kinds. Cross out the option you don’t want and initial the crossing-out, or delete the unwanted option in Word.

• If you want your attorney(s) to be able to refuse or withdraw only some kinds of medical treatment, write what those treatments are on the blank lines. You can add more lines in Word if you need them.

• You do not need to say when your attorney(s) can start making personal care, health care or medical research decisions for you, as they can only do these if you lose decision-making capacity.

• For property and financial matters, tick the box that indicates when you want your attorney(s) to be able to decide on your behalf: either immediately, from a specified date or event, or only if you lose decision-making capacity.

• Cross out the unwanted options and initial the crossing-out, or delete the unwanted options in Word.

• Your EPA may be revoked if, later, you marry or enter into a civil union or civil partnership with someone other than an attorney appointed under the EPA.

• To prevent this happening, if there is someone with whom you might possibly enter into such a relationship after making your EPA, write that person’s name and address in this section. This will prevent the EPA being revoked if a marriage, civil union or civil partnership with that person does begin.

To complete your EPA, you need to sign the form and have it legally witnessed. The next section of the form relates to signing and witnessing the EPA.

4. Sign and witness

You must sign your EPA in front of 2 witnesses who are both aged 18 years or older. If you are unable to sign it yourself, you may also direct another person to sign and initial the EPA on your behalf.

• Your first witness must be an ‘authorised witness’, which means someone who is authorised to witness the signing of a statutory declaration.

• No more than one witness can be your relative or a relative of one of your attorneys.

• Neither witness can be an attorney or a person signing the EPA on your behalf.

• The Public Trustee and Guardian’s ‘The power to choose: your guide to completing an enduring power of attorney’ booklet (PDF, 2 MB) includes a list of people who can be authorised witnesses. See attachment 2 on page F16.

• Depending on who you choose, a fee may apply for providing the witnessing service.

• Turn to section 10 ‘Statement of understanding and signature’.

• Do not sign your EPA alone or in the presence of only one witness. Both witnesses must see you sign and date your EPA.

• Sign your name in the blank box opposite ‘Signature of appointer (principal)’, then write the date in the blank box below that.

• Cross out the following text and boxes in section 10 (which are only used when someone signs on the principal’s behalf) and initial the crossing-out. Alternatively, delete the text and boxes in Word.

• Turn to section 10 ‘Statement of understanding and signature’.

• Do not have your EPA signed alone or in the presence of only one witness. Both witnesses must see the person sign and date your EPA for you.

• Cross out the ‘Signature of appointer (Principal)’ and ‘Date’ boxes in section 10 (which are only used when principals sign for themselves) and initial the crossing-out. Alternatively, delete the boxes in Word.

• Have the person who’s signing for you write their full name and address in the appropriate blank boxes opposite ‘Name and address of person signing by direction’.

• Have them sign and date the EPA, in front of you and the 2 witnesses, in the boxes below their details.

• Have your authorised witness read the statements that follow the heading ‘Witness 1’.

• If you signed the form yourself, statements (c), (d), (e) and (f) should be either crossed out and initialled or deleted in Word.

• If someone signed the form on your behalf, statements (a) and (b) should be either crossed out and initialled or deleted in Word.

• Have your authorised witness sign in the blank box opposite ‘Signature of witness 1’, then complete the remaining blank boxes with their name, qualification and address and the date.

• Have your second witness follow these steps at ‘Witness 2’.

• The form provides spaces for 2 attorneys to sign their acceptance. If you have more than 2 attorneys, add more spaces by copying and pasting in Word. Remember to renumber the attorneys.

• Your attorney(s) must read the acceptance statements in the form before signing.

• After reading the acceptance statements, each attorney should write their name, sign their name, and date their signature in the relevant blank box.

• If you are appointing only one attorney, cross out the boxes for Attorney 2 and initial the crossing-out, or delete them in Word.

• Here you will indicate whether this is your only EPA, whether it revokes a previous EPA, or whether some authorisations you gave in a previous EPA will continue to apply along with this EPA.

• Tick the appropriate box. Cross out the others and initial the crossing-out, or delete the unwanted options in Word.

• If you’ve indicated that you want existing authorisations to continue alongside this EPA, write what they are on the blank lines. You can add extra lines in Word if you need them. Include the date of the existing EPA and the name(s) of the appointed attorney(s) as well.

• Check carefully that you’ve written what you intended: any authorisations you make in this EPA will override a previous EPA if there is any inconsistency.

• Write your name in the blank box opposite ‘Appointor (Principal)’.

• Sign in the blank box below your name.

• Write the date in the blank box below your signature.

Your EPA form is complete! There are a few more steps to finalise it.

Once your EPA has been correctly witnessed, the last step is to decide where to keep it.

5. Register and store

In the ACT, if your attorney’s powers include carrying out transactions with real estate, the EPA must be registered with the Access Canberra Land Titles Office before any real estate transaction is made. A registration fee applies.

Otherwise, you can store your EPA at home, perhaps with your will and other important paperwork. You might like to keep a copy of this checklist with the certified copies of your EPA.

• Visit the Access Canberra ‘Deed registration including powers of attorney’ webpage for information about registration and the applicable fee. (A power of attorney is considered to be a type of deed.)

• Read the information on the ‘Frequently asked questions’ tab.

• You will need to lodge both the original EPA and a certified copy, along with a completed ‘Application to register a deed’ form and the applicable lodgement fee.

• The ‘Application to register a deed’ form is available through the ‘Forms and fees’ tab. Take note of the current fee that applies.

• You can download the form from the next screen in either a PDF or Word version. The Word version will be easier to use if you wish to complete the form on your computer.

• Read the application form through carefully before you begin.

• If you’re completing the form by hand, use a black or blue pen, not a pencil or another colour.

• In ‘Lodging party details’, provide your name, email address and contact phone number.

• In ‘Type of deed’, tick the grey box and write ‘Enduring power of attorney’ on the dotted line.

• Next, as the principal lodging the EPA, complete the ‘Party 1’ boxes. (‘Party 2’ would be completed if your attorney was lodging the EPA.)

• Have an authorised witness complete the ‘Statutory declaration’ part, then sign the form at ‘Signed (applicant’s signature)’ in front of the witness. The witness must then sign and fill in the rest of the spaces.

• Make an appointment to lodge the completed application form in person at the Land Titles Office in Dickson. Call them on (02) 6207 0491 or email actlandtitles@act.gov.au to make your appointment.

• A Justice of the Peace (JP) can certify your documents for you. You can find a JP near you through the Access Canberra ‘Find a Justice of the Peace (JP)’ webpage

• Give certified copies to all your attorneys and substitute attorneys.

• Give certified copies to people such as your lawyer, bank, personal care provider, accountant, GP, family members and trusted close friends.

• You can send a copy to the ACT Health Advance Care Planning Program, where it will be added to your electronic medical records and enable doctors and other medical providers to check what your medical care wishes are. For more information on this, see ‘Storing your documents’ on Advance Care Planning Australia’s ‘Create your plan in the Australian Capital Territory’ webpage.

And finally …

• Circumstances and relationships change, so it’s wise to review your plans regularly and make adjustments if needed.

Sometimes things change, and you may decide later that you want to appoint a different attorney, alter the preferences that you recorded in your EPA, or revoke (cancel) your EPA completely.

6. Changing or revoking

In the ACT, you may change or revoke (cancel) your EPA at any time as long as you still have capacity.

• Has an attorney become bankrupt, lost their decision-making capacity, died, or resigned from being your attorney? In some circumstances, these events can completely or partially revoke your EPA (see page 14 of the Public Trustee and Guardian’s booklet ‘The power to choose: your guide to completing an enduring power of attorney’ for more information).

• Has your good relationship with your attorney changed, or do you now have doubts that a person you nominated will act in your best interests?

• Will someone else now be better to handle certain decisions for you?

• Have your circumstances changed? For example, have you now married, entered into a civil union or partnership, separated or divorced?

• How do you now want your future decisions to be made if you should lose capacity?

• Compass ‘Powers of attorney in the Australian Capital Territory: can I change or cancel my power of attorney?’

• Public Trustee and Guardian ‘The power to choose: your guide to completing an enduring power of attorney’ booklet, page 14

Now you should be prepared to make the changes that you want.

To be able to revoke an existing EPA, you must still have decision-making capacity. The revocation must be made in writing, and you are expected to take all reasonable steps to advise your attorney(s) that the EPA has been revoked.

• The best idea is to fill in the revocation form as part of completing a new EPA.

• Follow this checklist again to help you make a new EPA and indicate in schedule 1 whether you are revoking all of the existing EPA or only part of it.

• Provide them with copies of the new EPA.

• Make a note of how and when you tell them.

• Ask to have their copies of the previous EPA back, if possible.

• Download the 'Application to register a revocation of a power of attorney’. The form is available in both PDF and Word formats.

• If you wish to fill in this form by hand, use a black or blue pen, not a pencil or any other colour.

• In ‘Lodging party details’, provide your name, email address and contact phone number.

• In ‘type of power of attorney’, tick the ‘Enduring power of attorney’ box.

• In ‘Type of revocation’, tick the ‘Revocation by principal’ box and cross out the ‘Resignation by attorney’ option. Initial the crossing-out.

• In the next box, you’ll need to provide the registration number of the EPA that’s being revoked. You should have received this when you registered the EPA.

• Next, as the principal revoking the EPA, complete the ‘Party 1’ boxes. (‘Party 2’ would be completed if your attorney was registering their resignation.)

• Under ‘Execution of attorney and/or principal revoking’, write your full name, then ‘Principal’ in the left-hand blank box. In the right-hand blank box, write the full name and address of the witness to the revocation.

• Leave the ‘Instrument number’ and ‘Office use only – execution of Registrar-General’ boxes blank.

• Lodge the application form in person at the shopfront in Dickson. The address and opening hours are on the form’s cover page. It’s a good idea to phone ahead (13 2281) to confirm the opening hours and find out if you should make an appointment first.

To be able to change an existing EPA in the ACT, you must still have decision-making capacity.

• Write a whole new EPA on a new form and indicate in schedule 1 ‘Revocation of an enduring power of attorney’ whether any authorisations made in your previous EPA are to continue alongside your new EPA.

• Go through the signing, witnessing and acceptance steps as you did for the previous EPA.

• Give certified copies of the new EPA to any new attorney(s) that you have appointed.

• Provide them with copies of the new EPA.

• Make a note of how and when you tell them.

• Ask to have their copies of the previous EPA back, if possible.

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