Power of attorney with an ageing parent

I was sitting at Mum's dining table on a Saturday at 2:14 in the afternoon, with a manila folder I'd printed at home and a pen from the kitchen drawer, and Mum had her glasses pushed up on her head and her arms folded the way they had been folded since I was eight years old and trying to convince her of something. She had agreed, in principle, three weeks earlier, on the phone, that we should "sort out the paperwork". That was Mum-language for the enduring power of attorney. Now, in person, with the actual form in front of her, the shutters had come down. "Why does it have to be both of you boys?" she said. "I don't want you arguing." The kettle clicked off in the kitchen. I let the question sit for a long second before I answered, because I had, this time, prepared.

The conversation about a parent's enduring power of attorney is one of the hardest small conversations in adult life. It is sensitive because the subtext is "I think there's a chance you'll lose capacity, and I'd like to plan for it before you do". No parent wants to hear that. Most parents, given a choice, will defer it indefinitely. And the moment they actually need it (after the stroke, after the dementia diagnosis, after the fall) is the moment they can no longer give it, because the legal threshold for granting an EPOA is exactly the capacity the EPOA is designed to handle the loss of.

So the conversation has to happen before the need is obvious. That is the whole problem.

What an enduring power of attorney actually is

In Australia, an enduring power of attorney (EPOA) is a legal document by which a person (the "principal") appoints one or more attorneys to make decisions on their behalf, and which "endures", meaning it survives the principal losing capacity. There is also a separate document, variously called an Enduring Guardianship, an Advance Care Directive, an Appointment of Medical Decision Maker (the names vary by state) which deals with health and lifestyle decisions. EPOA in the strict sense covers financial and legal decisions: paying bills, selling shares, managing the bank accounts, signing the contract that puts Mum into residential aged care.

The forms are state-based. New South Wales has its EPOA form. Victoria has its own (an Enduring Power of Attorney covering both financial and personal matters under the 2014 Act). Queensland has its EPOA1 form. Western Australia, South Australia, Tasmania, the ACT and the Northern Territory each have their own statutes and forms. The forms are mostly free or low-cost, and the witnessing requirements are specific (in most states, a JP or solicitor or other prescribed witness, and the principal has to demonstrate, at the time of signing, that they understand what they are signing).

The principal can make the EPOA effective immediately, or only on the loss of capacity. Most families, sensibly, choose the second option ("commences when I am unable to make decisions for myself, as certified by my GP or a specialist"), so the document sits in a drawer until it is needed and then activates.

The conversation, and the resistance

The resistance is normal and almost universal. Even parents who agreed in principle on the phone tend to flinch when the form is on the table. The flinch comes from a few different directions, and naming them helps:

• Fear of losing control over money, even though the trigger is loss of capacity not loss of preference
• Fear of being seen by the children as "going downhill" already, which the form symbolises
• Fear that the family will fight (about money, about residential care, about the house)
• A culturally inherited sense that talking about decline brings on decline, which is irrational but powerful
• A specific fear that one child, often the one already doing the most, will use the EPOA to take advantage
• A general dislike of paperwork, and a stronger general dislike of paperwork that is about death
• The honest reservation that capacity is a slippery threshold and they don't want to lose autonomy a moment too soon

The way through is not to argue with the resistance. It is to validate the resistance and lower the stakes. "Mum, this is for the day when you have a stroke and can't sign things at the bank, not for tomorrow. It sits in the drawer. We don't use it. If you ever want to revoke it, you can, while you have capacity, with one form. It's a fire EXTINGUISHER. We'd rather have one and not need it."

The "fire extinguisher" framing has worked for me with three people, and I have given the line to a dozen friends, and it has worked for most of them too.

The two-attorneys model

The most important practical decision is who you appoint and how. The default, for a parent with two or more adult children, should be two attorneys, jointly or jointly-and-severally, depending on the circumstance.

Joint means both attorneys must agree on every decision. Severally means either can act alone. Jointly-and-severally means either can act alone, but both can act together when needed. For most families I know, jointly-and-severally is the right choice. It allows one attorney to handle the day-to-day (paying the gas bill, dealing with the bank) while requiring both for the big decisions (selling the house, moving Mum into care). Most state forms allow you to specify that certain decisions, above a threshold or of a certain kind, require both signatures.

The reason for two attorneys, structurally, is accountability. A single attorney, even a deeply trustworthy one, is exposed. They are the only check on themselves. Two attorneys force a small amount of friction into every significant decision, which protects both the principal and, importantly, the attorney themselves from later allegations by other siblings.

The siblings who are not attorneys can still have a copy of the document. The attorneys can keep the others informed in writing. This is the difference between an attorney role and an information role, and the distinction matters in families where there is even a whisper of historical sibling tension.

The wrong configuration, almost always, is one child as sole attorney while the other children are kept at arm's length. It causes fights. It causes audits. It causes long, expensive disputes after the principal dies. Two attorneys (and even three, if the family has three reliable adult children) is structurally safer, even if it is slightly slower in operation.

The bank, and the frustrating process

The other thing nobody tells you is that an EPOA is a legal document, but it is not, in practice, a key. Each financial institution has its own process for accepting and registering an EPOA, and the processes are slow, inconsistent, and often appear designed to discourage use.

The Big Four banks all require, typically: a certified copy of the EPOA, a 100-point ID check on each attorney, sometimes a witnessed declaration, sometimes a face-to-face appointment at a branch. The registration takes between two and six weeks. Some banks register the EPOA against a single account; others register it against the customer; the difference matters when Mum has accounts at three institutions.

Superannuation funds and life insurers are worse. Some will not act on an EPOA for benefit decisions and will require a court-appointed financial manager instead.

The practical move, while the principal still has capacity, is to take the EPOA into each of their banks together, with the parent present, and register it at every institution. Do this in the same week if you can. Get receipts. Keep the certified copies. Keep a list of which bank registered which form on which date.

The list will save you weeks of grief later.

The "use sparingly" principle

When the EPOA does activate, the right principle is to use it as little as possible.

If Mum can still sign a cheque herself with help, let her sign it. If Mum can still understand the gas bill being read aloud and say yes pay it, that's better than you paying it on her behalf without her input. The EPOA is not a takeover. It is a backstop. The longer the principal stays in the loop on their own decisions, even on the days they need help, the better the relationship and the lower the legal exposure.

The other side of "use sparingly" is records. Every time you do use the EPOA, keep a record. A notebook is fine. Date, decision, why, dollar amount if relevant, whether you discussed it with the co-attorney. This sounds like overkill until the day three years later when one of your siblings asks why $14,000 went out of Mum's account in March, and you can hand them the page from the notebook and the conversation ends.

A short list of records-discipline practices that are worth setting up at the start:

• A single bank account designated as the "managed account", with everything else swept into it monthly, so there's one place to watch
• A cheap notebook in the kitchen drawer at Mum's house, where every cheque written under the EPOA is logged the same day
• A standing email each month to the other attorney summarising what's been done that month, even if both attorneys are siblings who talk all the time
• A separate email folder where every receipt, invoice, and bank statement related to Mum's affairs is filed
• A quarterly check-in with the other siblings (not just the attorneys) showing the headline numbers, the bills paid, the decisions made
• A clear paper trail of any reimbursements you take from Mum's funds for expenses, however minor, because the day someone questions a $43 lunch from 2024 will arrive, and you will want the receipt

The siblings who have never been attorneys will not understand how much work this is. Don't expect them to. Keep the records anyway. The records protect you more than anyone.

When the EPOA isn't enough

In some situations, the EPOA is not the right tool. Where capacity is already gone and no EPOA was made, the family has to apply to the relevant tribunal (NSW Civil and Administrative Tribunal, VCAT in Victoria, QCAT in Queensland and so on) for the appointment of a financial manager and guardian. This is more expensive, slower, and less flexible than an EPOA, and sometimes the tribunal appoints the Public Trustee or a public guardian rather than a family member. It is exactly the situation everyone wants to avoid.

The whole point of the EPOA conversation, and the reason it is worth having despite the awkwardness, is that the alternative is much worse.

The sentence that worked for me

When Mum asked, that Saturday, "Why does it have to be both of you boys?", I said this. "Because if it's just me, the day will come when one of you accuses me of something, and I'd rather have my brother in the room when I make every decision so neither of you can say I did it alone." She thought about it for a long minute. She picked up the pen. She signed.

The form is in a drawer. I hope it stays there for years.

Set the extinguisher up before the fire.