Powers of attorney have been used for centuries. The power of attorney gives legal power to a person (attorney) to deal with financial and property matters on behalf of the person (principal) making the power. Originally, under the common law, a power of attorney terminated automatically when the principal lost legal capacity through loss of capacity (such as dementia) because the agent (attorney) could not by law make any decisions on behalf of the principal that the principal could not make themselves. To rectify this situation legislation was introduced in the 1970’s and 80’s to establish ‘enduring’ powers of attorney, that endure beyond when the principal has lost capacity for decision making. A person can now appoint a trusted person (or persons) as enduring power of attorney to act on their behalf should they lose capacity, upholding important principles of choice and control. This avoids the need for a tribunal appointed decision maker and may also help protect against elder abuse.
This was a great improvement, particularly for the elderly. However, under law it was not possible to appoint another person to make lifestyle or personal decisions regarding matters like medical treatment or the most appropriate accommodation for a person who has lost capacity. Enduring guardianship was first introduced in SA in 1993 to address this, followed by all other states and territories. In my role as an Aged Care Placement Specialist I often work with enduring powers of attorney and enduring guardians.
Currently, although all states and territories recognise enduring documentation from other states and territories there are differences. For example, in Victoria and Queensland the enduring power of attorney and guardianship are in one document, whereas in New South Wales it is two separate documents. South Australia has a separate process of enduring powers of attorney for financial matters and advance care directives legislation, allowing a person to appoint a substitute decision maker (equivalent to an enduring guardian).
Obligations of the attorney were not set out but were defined by common law and equitable fiduciary duties, such as duties of loyalty, duties of due care and diligence whilst guardians were expected to act in the ‘best interests’ of the principal. Recently, Queensland and Victoria have passed legislation that set out principles to guide decision making by attorneys, seeking to uphold the fundamental rights of the principal. This approach is not applied consistently across the states and territories. The changes made in Victoria and Queensland will certainly help to clarify these very important roles and decision making at a critical time in the principal’s life.
If you seek more detailed information read the document on Enduring Powers of Attorney and Enduring Guardianship by the Australian Law Reform Commission.