02/11/2026
Monday Money Talk with Noel Whittaker
Storm season is here: government and local councils are urging us to “be prepared”. It’s sad but true that many people neglect to prepare for stormy weather, as if we think that being prepared for misfortune will bring it down on us. But the time to clean your gutters is in the dry season, not during a storm. Nowhere is that more true than with an enduring power of attorney. As our population ages, more families are confronting dementia, strokes and other illnesses that can rob people of their ability to make decisions. But incapacity is not confined to the elderly.
Imagine Jack and Jill, a couple in their forties, with two young children and a mortgage. Jack has always handled the family finances, and several accounts are in his sole name. One morning he suffers a major stroke and loses the capacity to make financial decisions. When Jill comes back from the hospital, dazed, she goes to the bank to access Jack's account so she can pay the mortgage and household bills. The bank is sympathetic but firm: she can't touch it without legal authority. Sympathy, unfortunately, doesn't pay the electricity bill.
Because Jack never signed an enduring power of attorney (EPA), Jill must apply to a tribunal to have someone appointed to manage his finances. That's QCAT in Queensland, NCAT in New South Wales, VCAT in Victoria and the State Administrative Tribunal in Western Australia. It generally means obtaining written medical evidence about Jack's decion-making capacity, making an application, attending a review, and receiving a formal decision. The tribunal may not appoint the person Jack would have chosen. All of this takes time, at the very moment Jill has the least of it. Had Jack signed an appropriate enduring power of attorney appointing Jill, she could have presented it to the bank immediately.
If all you want is for someone to operate one bank account, the bank's own forms will usually do the job. But if you want someone to manage your affairs when you can't, you need a properly executed EPA.
The language of EPAs can be confusing, so let's start with the basics. The person giving the power is the donor or principal, and the person appointed to act is the attorney. It must be an “enduring” power: an ordinary, or general, power of attorney ends if the person who made it loses decision-making capacity. But that's precisely when a family needs it most. An enduring power of attorney continues after capacity is lost. But every power of attorney ends at death. From that point, the executor or administrator takes over from the attorney, although probate may be required before certain assets can be dealt with.
This means you need a will to appoint your executor, and an EPA to appoint your attorney: they do completely different jobs.
The EPA document sets out what the attorney can do, and that authority can be very narrow or very broad. The rules are set by each state and territory, and they differ more than most people realise. In Queensland and the ACT, an EPA can cover personal and health matters as well as financial affairs. In Victoria, it can cover financial and personal matters, but decisions about medical treatment require a separate appointment process. In New South Wales, Western Australia and Tasmania, EPAs deal with financial matters, while health and lifestyle decisions require separate enduring guardianship arrangements.
South Australia uses an advance care directive for personal and health decisions, while the Northern Territory has an advance personal plan that can cover financial, personal and health matters. The important point is that a financial EPA alone may not authorise someone to make decisions about your medical treatment, accommodation or personal care. This becomes critical if you lose capacity because of illness or accident, and need hospital treatment or admission to residential aged care. Make sure your solicitor checks that your arrangements cover both financial and personal decisions, using the appropriate documents for your state.
Witnessing requirements also vary, and are very specific. In Queensland, standard forms are available free from qld.gov.au, and an EPA must be signed before an eligible witness, such as a justice of the peace, commissioner for declarations, lawyer or notary public. New South Wales requires a prescribed witness who explains the effect of the document, while Victoria generally requires two adult witnesses, including one with specified professional or witnessing qualifications. The attorney's acceptance must also comply with the relevant state's requirements.
You can often choose when the financial power starts. In Queensland and Victoria, for example, it may operate immediately, or from a specified time or circumstance, including loss of capacity. Remember that an EPA that starts only after incapacity means that in a crisis the attorney must jump through hoops to prove that incapacity has occurred before they can do anything. In Western Australia, an enduring power that is to commence upon loss of capacity requires a determination by the State Administrative Tribunal. These are important issue to discuss with your solicitor. An immediately effective power is much more convenient, but it also gives your attorney authority while you are still perfectly capable of managing your own affairs.
Choosing your attorney obviously requires enormous care. If you are preparing for life’s storms, you’re giving someone extensive control over your finances, so trustworthiness, competence and willingness to accept the responsibility are essential.
You can – and should – appoint more than one attorney so there is a replacement in case one dies, loses capacity or is unwilling to act. Depending on the legislation, you can also specify whether they act separately, jointly, or by majority. Joint and majority appointments provide a safeguard, of course, but can be very inconvenient: every transaction requires two signatures, which can be difficult for the attorneys to organise.
If there is nobody suitable, public trustee organisations may be available to undertake financial responsibilities, subject to their acceptance, fees and conditions. It can be expensive, and this should be a reminder to you that your attorney may be taking on quite significant work by accepting the appointment. In addition, financial abuse is a genuine concern. The Australian Institute of Family Studies' National Elder Abuse Prevalence Study estimated that 83,800 older Australians living in the community experienced financial abuse in the year surveyed in 2020. Adult children accounted for approximately one-third of the perpetrators.
Attorneys have serious legal obligations. They must act within the authority given to them, keep appropriate financial records and avoid conflicts of interest. In Queensland and New South Wales, financial attorneys must generally keep the principal's money and property separate from their own. Appointing someone as your EPA does not mean giving them permission to help themselves to your assets.
There are also practical traps that can turn a carefully prepared document into a nightmare. Alan prepared his will and EPA, then carefully locked both away in a bank safe deposit box. It kept them so safe that when he had a stroke and his family urgently needed the documents, they had to get a court order to access them. It's vital that your attorneys have certified copies of the EPA, know where the originals are kept, and can obtain them when necessary.
I also recommend registering your EPA with your bank well before you need to use it. Maria had appointed her two adult children as joint attorneys. Everything seemed fine until they went to the bank to withdraw $500,000 to pay the refundable accommodation deposit at her aged care facility. The bank discovered that the two children had signed the document before their mother and refused to accept it.
Her lawyer said, "No problem. We'll just get the attorneys to re-sign the document." But the bank replied, "No way. We won't accept that." The matter eventually required in-person attendance at a tribunal to have the re-signed document validated before it could be used. The lesson is that even a minor error in the signing process can cause enormous difficulties when action is urgently needed. The precise legal consequences depend on the relevant legislation, but the practical problems are very real.
In my view, what you need to do is straightforward. Make your enduring power of attorney while you still have capacity, because once that has gone it's too late to grant one. Make sure your attorneys have access to certified copies and know where the originals are kept. Check your bank's requirements, and ensure the people responsible for your health and personal care decisions have the appropriate authority. To really look after your attorneys, use the free “Executors’ and attorneys’ cheat sheet” I made for you, which you can download at www.noelwhittaker.com.au. Review your arrangements regularly, particularly after marriage, divorce, the death of an attorney or any significant change in family circumstances.
The message is simple. It always pays to be prepared for life’s storms: buy an umbrella while the sun is still shining.