Choosing who to appoint

Probably the most important decision is who you are going to choose to make decisions for you. This is particularly important when you are appointing someone with an enduring power, as they will have the authority to make decisions for you after you lose the capacity to change or cancel the appointment.

Many people choose their partner or an adult child, but you may prefer to appoint another family member, a friend with expertise in the area, an accountant, a lawyer, State Trustees (link below) or a trustee company. You should feel confident that the person or agency is competent and willing to take on the responsibility on your behalf.

For someone to be your attorney or guardian they must:

• be 18 years of age or more
• have legal capacity.

See ‘Making a power of attorney or guardianship' (link below).

Choosing the best decision-maker for you

When you appoint someone to make decisions on your behalf, be sure the person is going to act the way you want them to. This means you need to choose someone who knows you well enough to be able to know what you would want.

You can choose the same person to be your guardian, financial attorney, medical attorney and executor of your Will. You can also choose different people for each role.

Think carefully about deciding who you are going to appoint.

Appoint someone you can trust

Remember that any power of attorney or guardianship gives enormous power to the person you appoint. They will be able to make legally binding decisions about important areas of your life. With the exception of the general power of attorney, the person is able to make decisions when you lose capacity to make decisions yourself. That means they are able to make important decisions for you when you are vulnerable and powerless. You need to be sure that the person is someone who you trust.

Appoint someone who can act according to your interests and not their own

Do not assume that the people who are closest to you will be the best decision-makers.

Sometimes the people who know you the best are also the least objective. For example, it might be very difficult for a close friend, partner or family member to make decisions about life-saving medical treatment. They would be trying to balance their responsibilities to do what you would want with their own feelings about what they want.

This does not mean that it is unwise to appoint people who are close to you. Think about whether the person will be able to act genuinely in your best interests to do what you want.

Appoint someone who is likely to be able to take on the role when it is needed

Often the powers will not be used for some time, particularly with enduring powers of attorney or guardianship. You need to appoint someone who is able to take on the role in the future. This might not be someone who is appropriate now. For example, an older parent or friend might not be appropriate, because they may not be alive or able to take on the role when required.

Appoint someone who is happy to take on the role

Make sure you talk with the person you want to be your attorney or guardian before making the appointment. Do not assume they want to take on the role. The person might know you well and care for your welfare and interests, but they might feel they cannot be objective.

Appoint someone who will listen to what you want and respect your preferences, even after you have lost legal capacity

Anyone who is appointed to make decisions for you should take the time to listen to what you want. This means they need to talk with you about the sorts of situations that might arise, and what decisions you want them to make. For example, if you make an enduring power of attorney (medical treatment) you should talk to your attorney about what sort of medical treatment you would want (and not want), and when you want them to refuse life-prolonging treatment. The person should also be prepared to check what you want in the future, as your opinions and priorities might change.

If you lose capacity to make decisions, it is important that decisions are made based on what matters to you. You might not be able to explain what you want coherently, but you may still be able to communicate in some way. Be sure you appoint an attorney or guardian who respects your wishes and will take the time to find out what is important to you, even after you have lost capacity.

Talk to the person about how you would want decisions made before you appoint them. This not only gives them an idea of how you would want them to act, but also gives you a sense of how open they are to listening to you and to accepting the sorts of decisions you would want made.

It is important that you choose someone who is also able to listen, respect what you want and balance this with what is in your best interests.

Appoint someone who is able to take on the role

Make sure the person you appoint knows enough about the issues so they can make appropriate and competent decisions. This does not mean the person you appoint needs to be an expert, but it does mean they need to know what they are doing, and be able to get advice from others when necessary.

What if I do not have any family?

If you do not have any family, or there is no-one you trust to make decisions, you can appoint a professional person to make your decisions.

You can appoint a trustee company, a lawyer or an accountant to make your financial decisions. Always get consent before making these appointments. There will usually be a cost involved to your estate.

You may trust that your health care professionals can assist you to make decisions that are in your best interests. You may be happy to comply with their decisions, as they have a professional duty of care. If they fail that duty, another carer can ask the Public Advocate or an aged care body to investigate your situation.

In rare circumstances, the Public Advocate will accept an appointment as a person’s agent or guardian. However, talk to the Office of the Public Advocate before any such appointment is made.

Check that you have appointed the right person

Circumstances can change. Someone who is the right person to appoint now might not be the right person in a year or so. It is a good idea to check at least once a year to see if the people you have appointed are still right for the job. You can change your appointment if you change your mind.

See ‘Changing or cancelling your powers’ (link below).

More information

Changing or cancelling your powers

Making a power of attorney or guardianship

Related publications

Securing their future

Take control

Related websites

State Trustees

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