When does an enduring power of attorney start?

It depends on the state and on the document. In Western Australia, for example, the donor declares either that the power continues despite later incapacity, or that it operates only while the State Administrative Tribunal has declared the donor lacks capacity.

Does a power of attorney continue after death?

No. Every power of attorney ends when the principal dies. The executor named in the will then deals with the estate.

Is an enduring power of attorney from another state valid?

Generally yes. NSW, for example, recognises an interstate enduring power of attorney if it was valid where it was made and the powers could validly be given in NSW. An enduring power made overseas is not recognised in NSW.

Can I use a form without a lawyer?

In some states, yes. Queensland requires its approved form, and South Australia's Legal Services Commission publishes a do-it-yourself kit. In NSW the witness must be a prescribed person such as a solicitor, and NSW Trustee and Guardian does not supply blank forms.

Can I cancel a power of attorney?

Yes, while you still have capacity. Tell your attorney in writing, notify your bank and anyone who holds a copy, and register the revocation if the power was registered.

Power of Attorney vs Enduring Power of Attorney (By State)

A general power of attorney lets someone act for you only while you can still make your own decisions, while an enduring power of attorney continues after you lose decision-making capacity. Both end when you die. To make an enduring power, you sign your state's form in front of the witness or witnesses its law requires, and in most states your attorney also signs to accept the appointment.

Before you sign, choose who will act, decide whether they act jointly or separately, and check whether your state uses a separate document for health and lifestyle decisions. In NSW, an enduring power of attorney covers only financial and legal decisions, and an enduring guardian is appointed in a different document. Wills & estates lawyers in Australia can prepare these documents at the same time as a will.

What is the difference between a power of attorney and an enduring power of attorney?

The difference is what happens when you lose capacity. A general power of attorney stops working at that point; an enduring power of attorney keeps working.

Feature	General power of attorney	Enduring power of attorney
Continues if you lose capacity	No	Yes
Typical use	Travel, a single transaction, temporary help	Long-term planning for illness, injury or ageing
Ends on your death	Yes	Yes
Witnessing	Usually one adult witness who is not the attorney	Stricter rules, often a qualified witness

In NSW, a general power of attorney can be witnessed by any adult who is not an attorney under it. An enduring power of attorney in NSW can only be witnessed by a prescribed witness, who must certify that they explained the document to you and that you appeared to understand it.

Which Act applies in each state?

Each state has its own Act, and the scope of an enduring power differs. Some states allow one document to cover financial, personal and health decisions. Others use a separate appointment for personal and health decisions.

State	Enduring power of attorney	Personal and health decisions
NSW	Powers of Attorney Act 2003 (NSW): financial and legal decisions only	Enduring guardian, Guardianship Act 1987 (NSW)
Victoria	Powers of Attorney Act 2014 (Vic): financial matters, personal matters or both	Covered by the enduring power; medical treatment decision maker under the Medical Treatment Planning and Decisions Act 2016 (Vic)
Queensland	Powers of Attorney Act 1998 (Qld): financial and personal matters, including health	Covered by the enduring power; advance health directive under the same Act
Western Australia	Guardianship and Administration Act 1990 (WA), Part 9: financial matters	Enduring power of guardianship, Part 9A of the same Act
South Australia	Powers of Attorney and Agency Act 1984 (SA): financial matters	Substitute decision-maker in an advance care directive, Advance Care Directives Act 2013 (SA)
Tasmania	Powers of Attorney Act 2000 (Tas): financial matters	Enduring guardian, Guardianship and Administration Act 1995 (Tas)
ACT	Powers of Attorney Act 2006 (ACT): property, personal care and health care matters	Covered by the enduring power
Northern Territory	Advance Personal Planning Act 2013 (NT): an advance personal plan appoints decision makers	Covered by the advance personal plan

In Victoria, new enduring guardian appointments can no longer be made, although appointments made under the old law continue. In South Australia, it has not been possible to appoint a guardian under the Guardianship and Administration Act 1993 (SA) since 1 July 2014; earlier appointments are treated as advance care directives.

Who can witness an enduring power of attorney?

Witnessing rules differ more than any other requirement, and a document witnessed by the wrong person is not effective.

NSW

An enduring power of attorney must be witnessed by one of these prescribed witnesses:

a solicitor or barrister;
a registrar of the NSW Local Court;
a licensed conveyancer who has completed an approved course;
a legal practitioner qualified in another country;
an employee of NSW Trustee and Guardian or a private trustee company who has completed an approved course.

Victoria

Two adult witnesses must be present together, and one must be authorised to witness affidavits or be a medical practitioner, under sections 33 and 35 of the Powers of Attorney Act 2014. Neither witness can be a relative of you or your attorney, an attorney, or your care worker or accommodation provider.

Queensland

One eligible witness is required: a justice of the peace, commissioner for declarations, notary public or lawyer, under section 31 of the Powers of Attorney Act 1998. The witness cannot be your attorney or a relation of you or your attorney. The document must be in the approved form and does not take effect for an attorney until the attorney signs to accept.

Western Australia

Two witnesses are required. Both must be authorised by law to take declarations, or one must be and the other must be an adult who is not an attorney, under section 104 of the Guardianship and Administration Act 1990. An enduring power of guardianship has similar two-witness rules under section 110E, and the witnesses sign in the presence of each other.

Tasmania

Two witnesses are required, neither of whom is a party to the document or a close relative of a party, under section 9 of the Powers of Attorney Act 2000. The power must then be registered: under section 16, anything the attorney does under an unregistered power has no legal effect.

ACT and Northern Territory

In the ACT, two adult witnesses sign in your presence and each other's, and for an enduring power one must be authorised to witness a statutory declaration, under sections 19 and 21 of the Powers of Attorney Act 2006. In the Northern Territory, an advance personal plan is witnessed by an authorised witness, being a person authorised to administer an oath under the Oaths, Affidavits and Declarations Act 2010 (NT).

South Australia

An enduring power of attorney is made under section 6 of the Powers of Attorney and Agency Act 1984. The forms can be downloaded from the Land Services Group website or bought from Service SA, and the Legal Services Commission of South Australia and the Office of the Public Advocate publish a do-it-yourself kit that explains how to complete them.

Do you need to register a power of attorney?

Registration is required only in some cases. In NSW, a power of attorney must be registered with NSW Land Registry Services if the attorney will deal with your real estate, and registration carries a fee. In Tasmania, a power must be registered before the attorney's acts have legal effect. Registration makes the document public.

What can go wrong without one?

If you lose capacity without an enduring power of attorney, nobody you chose has authority over your finances. In NSW, a court or tribunal may then appoint someone to manage your finances under a financial management order. The same applies to health and lifestyle decisions: without an enduring guardian, a tribunal may need to make a guardianship order. In NSW, the Guardianship Division of the NSW Civil and Administrative Tribunal can also review an enduring power of attorney, and declare it invalid if the principal lacked capacity to make it.

When to speak to a wills and estates lawyer

A lawyer is worth engaging when you own real estate, a business or assets in more than one state, when family members disagree about who should act, or when capacity may later be questioned. In NSW, a solicitor is one of the prescribed witnesses and can explain and witness the document in the same appointment. Compare wills & estates lawyers in Australia, or search by city: wills & estates lawyers in Sydney, wills & estates lawyers in Brisbane and wills & estates lawyers in Perth. To plan the rest of your estate, see How Much Does a Will Cost in Australia?.

Power of Attorney vs Enduring Power of Attorney