Enduring power of attorney checklist - TAS

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 (EPOA) before you start to make one will make the process easier.

• Compass, ‘Introduction to enduring power of attorney’

• Compass, ‘Powers of attorney in Tasmania’

• Public Trustee, ‘Enduring power of attorney’

• Land Tasmania, ‘Enduring powers of attorney’ fact sheet (PDF, 303 KB)

If you’re unsure about any of these, visit the Compass ‘Helpful terms to know’ webpage

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

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

• Capacity or Mental capacity (your ability to understand facts about your decisions, weigh up the consequences—i.e. the risks and benefits—of making decisions, and communicate consistent choices)

• Instrument (the EPOA form)

• Lose capacity (you become unable to make your own decisions)

• General enduring power of attorney (a legal document that authorises an attorney to make any financial and/or property decisions on your behalf now and after you lose capacity)

• Particular enduring power of attorney (a legal document that authorises an attorney to make particular, specified decisions on your behalf now and after you lose capacity)

• General power of attorney (a legal document that authorises an attorney to make financial and/or property decisions on your behalf only while you still have mental capacity; less commonly used in Tasmania than an enduring power)

• Jointly (2 or more attorneys must all make decisions together)

• Jointly and severally (2 or more attorneys can make decisions either on their own or together)

• Revoke (cancel)

• Land Tasmania (part of the state Department of Natural Resources and Environment Tasmania)

• Land Titles Office (an office within Land Tasmania that handles registration of documents, including EPOAs)

• General powers of attorney (which are different from general EPOAs) can authorise someone to make decisions for you while you still have mental capacity, usually for a short time, such as when you are travelling overseas or ill.

• EPOAs are a longer-term options and can authorise someone to make decisions for you straight away—while you still have capacity—as well as if you lose capacity.

• General EPOAs authorise decision-making about any financial and/or property matters, while particular EPOAs authorise decision-making only in specific matters.

• You can read more about these different documents in Legal Aid Tasmania’s ’Senior Assist – Handbook for attorneys, powers of attorney and enduring powers of attorney – Tasmania’ fact sheet.

• You can appoint an enduring guardian, who will be authorised to make personal, lifestyle and medical decisions for you if you cannot do so.

• You can also make an advanced care directive, which is a record of the health care treatments you’d like to have, or refuse to have (including end-of-life treatment), if you become unable to make the decisions yourself.

• Find out more about these future planning options on the Office of the Public Advocate’s webpages: Advance Care Directives, Enduring Guardianships, and Enduring Powers of Attorney.

Enduring Guardians

Learn more about how to create an Enduring Guardian document, who can be appointed and in which states and territories it applies.

More information

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 effect of making an EPOA and

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

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

• If you don’t currently have a solicitor, you can find one via the Find a lawyer or law firm function on the Law Society of Tasmania website.

• Senior Assist, providing free legal advice: phone 1300 366 611

• COTA (Council on the Ageing) Tasmania, providing free legal advice for older Tasmanians

• Public Trustee, for an appointment to prepare and register documents

• Tasmania Legal Aid, for free legal information.

Now you should be ready to start making your EPOA.

2. Get started

The best way to make your EPOA is to complete one of the official forms that are available for download from the Land Tasmania website.

• Think about whether you want your attorneys to make only particular financial and/or property decisions for you if you lose mental capacity, or to be able to make all financial and property decisions.

• If you want to appoint an attorney to make particular decisions, use Form 3: Particular enduring power of attorney (PDF, 605 KB).

• If you want to appoint an attorney to make any financial and/or property decisions, use Form 4: General enduring power of attorney (PDF, 605 KB).

• Both forms include 2 other forms that will be needed for registering the completed EPOA, and we’ll guide you through those later.

• Compass, ‘Powers of attorney’ webpage

• You Decide Who Decides, a booklet compiled by the Australian Guardianship and Administration Council

• Public Trustee, ‘Enduring power of attorney’ webpage

• Land Tasmania, ‘Enduring powers of attorney’ fact sheet (PDF, 303 KB)

• your solicitor

• 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 Tasmania you can appoint more than one attorney.

• 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 solicitor or accountant

• The Public Trustee

• They are over 18 years old.

• They are not bankrupt.

• They have full mental capacity.

• You trust them.

• Compass ‘Being an attorney’ webpage

• You Decide Who Decides booklet, section 1 ‘Choose someone you trust’, pages 15–20

• Legal Aid Tasmania, ‘Senior Assist – Handbook for attorneys, powers of attorney and enduring powers of attorney – Tasmania’ fact sheet

• 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 EPOA form on page 2.

• jointly (all attorneys must make decisions together and all sign any document)

• jointly and severally (they can make decisions either together or alone).

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

3. Complete the form

Both EPOA forms are in PDF format. You can complete your form on a computer if you have a PDF-editing program, such as Adobe Acrobat Reader (a free program—download from the Adobe website, but you’ll need to print the completed form when you are ready to sign it. Alternatively, you can print the blank form to fill it in by hand with a pen.

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.

• Form 3 is for appointing an attorney to make particular financial and/or property decisions for you if you lose mental capacity.

• Form 4 is for appointing an attorney to make all financial and/or property decisions for you if you lose mental capacity.

• The first 2 pages are the EPOA form, which you are about to complete.

• The 3rd and 4th pages, Form 5 and the Lodgement form, are for registering the completed EPOA, which you will do later.

• The last 2 pages contain information about completing the EPOA form.

• As donor, fill in your full name and home address on the first 2 dotted lines.

• In section 1 ‘I appoint’, record the name(s) and address(es) of your chosen attorney(s).

• If you are appointing only one attorney, cross out the lines provided for a second attorney—which are marked with an asterisk (*)—and the words ‘*jointly/jointly and severally’.

• If you are appointing more than one attorney, indicate whether your attorney(s) are to act jointly (only together) or jointly and severally (either together or individually) by crossing out the wording you don’t want.

• If you are completing Form 3, authorise your attorney(s) to do specific financial and/or property decisions by recording those particular decisions in section 2 ‘I authorise …’.

Your attorneys will not be authorised to make decisions other than the ones you record here.

• If you are completing Form 4, you do not have to do anything in section 2. The wording authorises your attorney(s) to make any financial and/or property decisions for you.

• Do not sign the form yet. You must have witnesses present when you sign, which will be covered in step 4 ‘Sign and witness’.

• In 2 places, the Statement of Acceptance page uses the expression ‘I/We’. If you are appointing only one attorney, cross out ‘We’ in both places, then cross out the second space provided for an attorney’s signature. Note that all 3 places to be crossed out are marked with an asterisk (*).

• If you are appointing 2 attorneys, cross out ‘I’ instead of ‘We’.

Make sure your attorney(s) sign and date their acceptance of the appointment on page 2. Their signatures do not have to be witnessed.

4. Sign and witness

You must sign your EPOA in front of 2 witnesses. The witnesses must be aged 18 years or older and must be ‘independent’, which means they cannot be:

• your attorney (‘a party to the EPOA’)

• your relative

• your attorney’s relative.

• With both witnesses watching, sign and date your EPOA on the dotted lines at ‘Signature of donor’.

• Have one of the witness sign and date the EPOA and write their full name as second witness.

• Have the other witness sign and date the EPOA and write their full name as first witness.

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

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

5. Register and store

In Tasmania, you can store your EPOA at home, but it must be registered with the Land Titles Office in Hobart for it to take effect. A fee applies for registration.

Once your EPOA is registered, you may continue making your financial and property decisions yourself, and your attorney will be authorised to make them as well. So if you want to, you will be able to direct them to carry out actions for you while you still have mental capacity.

In Tasmania, your EPOA is not legally binding or active until it is registered with the Land Titles Office. If you decide not to register it immediately, we recommend getting legal advice about when to register it. You or your attorney can register it yourself later, but legal advice will help you understand what effect this might have.

• At ‘Type of instrument’, write ‘Enduring power of attorney’ (either General or Particular).

• At ‘Number of pages’, write ‘TWO’.

• Next, record your name as donor and the name(s) of your attorney(s).

• Skip the ‘Identification number’ line.

• The person lodging the EPOA now signs and dates Form 5 and writes their name in the appropriate spaces.

• At ‘Capacity’, write down whether the person lodging the EPOA is the donor, an attorney, a solicitor, or another party.

• At ‘Address’, write the lodging person’s address.

• In the Panel A box, write the name and full postal address of the person who is lodging the EPOA for registration (for example, your attorney).

• Only write in the Panel B box if the EPOA is to be returned by the Land Titles Office to someone other than the person whose details are in the Panel A box. (For example, if the attorney is lodging the EPOA but the document should be returned to the donor, write the donor’s name and address here).

• Next, you’ll need to know the registration fee that will apply. Visit the Land Titles Office webpage and download the ‘Brief schedule of fees’ list (PDF, 120 KB) for the current year.

• In the columns, write ‘1’ underneath ‘No.’ (if the EPOA is the only matter being lodged).

• Underneath ‘Particulars * (to include title reference)’, write a brief sentence to say what the document being lodged is and the donor’s name (for example, ‘A general enduring power of attorney by Mrs [donor’s full name]’).

• Under ‘Fees $ c’, write the fee to be paid, as shown on the ‘Brief schedule of fees’ list you downloaded.

• Under ‘Particulars of remittance herewith’, write the method of payment, such as cheque, money order, or debit or credit card. (There is more information about payment methods later in this checklist.)

• Under ‘Fees $ c’, again write the fee to be paid.

• Keep a copy of the EPOA safely at home until the original is returned to you.

• Store the original EPOA in a safe place at home—perhaps with your will and other important papers.

• Give copies to all your attorneys and alternative attorneys.

• Give copies to any other relevant people, such as your solicitor, bank, care provider, accountant, family members and trusted close friends.

• You might like to keep a copy of this checklist with the copies of your EPOA.

• Submit the original EPOA form, not a copy, for registration. It will be posted back to you (or you can collect it) once it’s registered.

• Fees can be paid online by card, in person by EFTPOS, or by cheque or money order.

• If you wish to pay by cheque or money order, make it payable to the Recorder of Titles and attach it to your registration documents.

• If you wish to pay in person at the Land Titles Office, you can use a Visa or Mastercard credit or debit card when you lodge your registration documents.

• If you wish to pay online, write this on your lodgement form. After the Land Titles Office receives your registration documents, you will receive an email with information on how to pay online by Visa or Mastercard credit or debit card. You must pay within 7 days, and your registration will not proceed until you do.

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 EPOA, or revoke (cancel) your EPOA completely.

6. Changing or revoking

In Tasmania, you may change or revoke (cancel) your EPOA at any time as long as you still have mental capacity.

• Has your attorney become bankrupt, lost mental capacity, died or changed their mind about being your attorney? (These events would mean they could not continue as your attorney.)

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

• Has your marriage or de facto partnership broken down?

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

• Have your financial circumstances changed?

• Compass, ‘Making and changing enduring powers of attorney in Tasmania?’

• Land Tasmania, ‘Enduring powers of attorney’ fact sheet (PDF, 303 KB)

• Legal Aid Tasmania, ‘Senior Assist – Handbook for attorneys, powers of attorney and enduring powers of attorney – Tasmania’ fact sheet

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

To revoke an existing EPOA, you must still have mental capacity. You will need to make the revocation in writing on the official form and, if you registered the previous EPOA, lodge the form with the Land Titles Office.

• Download the ‘Deed of revocation of power of attorney’ form from the Land Tasmania ‘Power of attorney forms’ webpage (PDF, 1 MB).

• As donor, write your full name on the first dotted line, next to ‘I’, and your address on the second dotted line.

• Fill in the date of the previous EPOA and its registration number on the next 2 dotted lines.

• Write the full names of the attorney(s) you appointed in the previous EPOA on the next dotted lines.

• In front of a witness, sign the completed form in the space below ‘Executed as a deed’.

• Have the witness date and sign the revocation form in the appropriate spaces, then write their full name and address.

• At ‘Type of instrument’, write ‘Deed of revocation of enduring power of attorney’.

• At ‘Number of pages’, write ‘ONE’.

• Next, record your name as donor and the name(s) of your attorney(s).

• Skip the ‘Identification number’ line.

• The person lodging the revocation now signs and dates Form 5 and writes their name in the appropriate spaces.

• At ‘Capacity’, write down whether the person lodging the revocation is the donor, an attorney, a solicitor, or another party.

• At ‘Address’, write the lodging person’s address.

• In the Panel A box, write the name and full postal address of the person who is lodging the revocation (for example, you or your attorney).

• Only write in the Panel B box if the revocation form is to be returned by the Land Titles Office to someone other than the person whose details are in the Panel A box. (For example, if the attorney is lodging the revocation but the document should be returned to the donor, write the donor’s name and address here).

• Next, you’ll need to know the registration fee that will apply. Visit the Land Titles Office webpage and download the ‘Brief schedule of fees’ list (PDF, 120 KB) for the current year.

• In the columns, write ‘1’ underneath ‘No.’ (if the EPOA is the only matter being lodged).

• Underneath ‘Particulars * (to include title reference)’, write a brief sentence to say what the document being lodged is and the donor’s name (for example, ‘A deed of revocation of enduring power of attorney by Mrs [donor’s full name]’).

• Under ‘Fees $ c’, write the fee that is to be paid, as shown on the ‘Brief schedule of fees’ list you downloaded.

• Under ‘Particulars of remittance herewith’, write the method of payment, such as cheque, money order, or debit or credit card.

• Under ‘Fees $ c’, again write the fee to be paid.

• Follow the same steps as for the EPOA.

• Make sure to tell all your attorneys, as the Land Titles Office will not do this for you.

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

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

• Follow the same steps as for the EPOA.

To make a new EPOA, follow this checklist again.

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