In short

Choosing your enduring power of attorney matters more than choosing your executor, because an attorney acts while you're alive, often when you're least able to supervise them, with access to your money and property. Pick for trustworthiness, competence, availability, and their own financial stability — not birth order or fairness. Build in a substitute, a reporting requirement, and tell your family who and why, while you still have capacity.

We have a fairly thorough article about how to choose your executor — the credentials, the options, matching the person to the estate. We didn't have one about how to choose your attorney, which is an odd gap, because it's the bigger decision. Most people have it the same way round: they agonise over the executor and appoint the attorney on autopilot.

Here's why that's backwards. Your executor acts after you've died. If they're slow, or hopeless, or conflicted, they can create a real mess for your beneficiaries — but they cannot hurt you. You're beyond harm. Your attorney acts while you're alive, usually at the precise moment you're least able to supervise them, with access to your bank accounts, your investments, and potentially your home. A power of attorney is a legal document in which you (the "principal") appoint someone (your "attorney") to make financial and legal decisions on your behalf; an enduring power of attorney is the version that keeps operating even after you lose the ability to make those decisions yourself (ASIC MoneySmart, https://moneysmart.gov.au/glossary/enduring-power-of-attorney). If that appointment goes wrong, the person harmed is you — and you may be the least able of anyone to do something about it.

This article is general information only, not legal advice. Powers of attorney are governed by state and territory law and the rules genuinely differ, so the instrument itself is a job for a solicitor in your state. What follows is about the decision you have to make: who.

What are the defaults that aren't decisions?

Almost every bad appointment starts as a reflex rather than a choice. "The eldest" is the commonest — but birth order is not a qualification. "Whoever lives closest" is the next — and proximity does matter, but it isn't the whole job. And then there's "all the children, so it's fair," which deserves a moment because it's both the most common and the most misunderstood. Fairness to your children is not what this appointment is for. It isn't a bequest, or a mark of esteem to be divided evenly. It's a safeguard for you. A multi-person appointment made as a fairness gesture usually creates a governance problem rather than solving one, as we'll see below. None of these three is a decision. They're all ways of avoiding one.

Is it a job, not an honour?

That's the reframe the whole article turns on. The question is not "who deserves this?" or "who'd be offended if I didn't?" It's much colder than that: who will protect me when I can't protect myself?

MoneySmart puts the core of it in one sentence — choose someone you trust, who will manage your money well and be available when you need them (ASIC MoneySmart, https://moneysmart.gov.au/manage-your-money-in-retirement/get-help-in-retirement/wills-and-powers-of-attorney). Unpack that and you get the qualities that actually matter. Trustworthiness comes above everything, because this isn't a title — it's access to everything you own. Competence with money and paperwork matters next, because your attorney may need to manage your bank accounts, pay your bills, deal with services and Centrelink, and possibly sell your home if you move into aged care (ASIC MoneySmart, same source); being lovely isn't enough for that. Availability and proximity matter because the work is ongoing, sometimes urgent, and often tedious — a devoted child in London is a poor practical choice.

Then there's the uncomfortable one: their own stability. Their health, their age, their finances, their marriage, their own pressures. A person under real financial stress is a risk, however much you love them and however much they love you. That's not cynicism — it's simply where the danger sits. The national elder-abuse guidance is blunt that an enduring power of attorney, though meant to protect you, can instead become the vehicle for financial abuse when the attorney "takes advantage of their access to the older person's finances and assets to use or take money" (Compass, https://www.compass.info/featured-topics/powers-of-attorney/misuse-of-enduring-power-of-attorney/). You also want someone with the nerve to say no — to the family, and to you. And they must actually consent: ask them, because nobody should discover they're your attorney, and someone who agrees reluctantly is telling you something worth hearing.

What structure are you choosing, probably without realising?

If you appoint more than one person, there's usually a choice of how they act — and the words matter more than almost anything else on the form. A single attorney is simple, quick, and never deadlocks, but there's also no oversight. Appointing two or more people "jointly" means they must all agree on everything: that's a genuine check against abuse, but it's slow, and one uncooperative or absent person can freeze your affairs completely at the worst possible time. Appointing them "jointly and severally" means any one of them can act alone — convenient and robust, but the safeguard is largely gone, because you now have several people who can each act by themselves. And a professional attorney or trustee company is impartial and competent, doesn't get sick or move to Perth, but costs money and is less personal; it's a genuinely sensible option where the family is conflicted or there's nobody suitable. The terminology and what's available differ between states and territories, which is exactly the kind of thing to walk through with a solicitor rather than guess at.

What guardrails does almost nobody use?

You have more control over this than most people realise, and the elder-abuse specialists at Compass set out several safeguards you can build into the instrument itself (Compass, https://www.compass.info/featured-topics/powers-of-attorney/misuse-of-enduring-power-of-attorney/). You can name a substitute, because your first choice may be unable or unwilling when the moment actually arrives, and a backup costs nothing to include. You can require reporting — instructing that your attorney provide accounts to a named third party such as another child, your accountant, or your solicitor, through regular audits or annual reviews. This is the most under-used safeguard there is, and note what it does: it deters the dishonest attorney and protects the honest one from exactly the suspicion our article on family conflict describes, because the sibling who has to show the statements never has to argue about them.

You can often limit the powers — restricting what your attorney may do, for instance not selling the house without someone else's agreement. You can control when it starts: an enduring power of attorney can often be set to commence only if you lose capacity, rather than the day you sign, and you can even stipulate that more than one independent official must decide whether you have in fact lost capacity (Compass, same source). And you can tell the family — not a legal step, but a powerful one. Say who you've appointed and why, out loud, while you can. Silence is what suspicion grows in.

Should you do it while you still can?

This is the urgent part. You can only appoint an attorney while you have capacity. MoneySmart says it plainly: once you lose your decision-making capacity, you cannot put these arrangements in place (ASIC MoneySmart, https://moneysmart.gov.au/manage-your-money-in-retirement/get-help-in-retirement/wills-and-powers-of-attorney). If you leave it and lose that capacity, the decision doesn't wait for you — it passes to a guardianship tribunal, which will appoint someone to manage your affairs. It might be a family member. It might be a public trustee. It will not necessarily be who you would have chosen, and by then your opinion isn't the one that counts. Everything in this article exists to avoid that outcome. It's a conversation with a solicitor, and it's not an expensive one relative to what it protects.

What do the worked examples show?

These two show the same decision handled well and handled badly. They are illustrative only, and not legal or personal advice.

Consider Margaret, 74, a widow with three adult children. Her instinct is to appoint all three "to be fair" — Robert, who is capable but lives in Perth; Susan, who lives ten minutes away and manages her own household budget well; and Greg, who is warm and well-meaning but has just been through a business failure and is under serious financial pressure. Appointing all three jointly would mean every bank transaction needs Robert's sign-off from 3,000 kilometres away, which could freeze Margaret's affairs the moment she needs them most. Appointing all three jointly and severally would let Greg act entirely alone — and financial stress in an attorney is precisely the risk the elder-abuse guidance warns about (Compass, https://www.compass.info/featured-topics/powers-of-attorney/misuse-of-enduring-power-of-attorney/). On these facts, "all three, to be fair" is not fairness at all — it's a governance problem. On these facts it is generally rational for someone in Margaret's position to treat the appointment as a job rather than a gift: to appoint Susan (trusted, competent, available) with Robert named as substitute, and to write in a requirement that Susan provide annual accounts to the family accountant — which protects Susan from suspicion as much as it protects Margaret. Greg can be loved, included and told about the arrangement without being handed access to the chequebook.

Now consider Frank and Norma, both 78, with no children and a niece interstate they see twice a year. There is no obvious family candidate, and Frank half-assumes that means he simply can't make a power of attorney. That assumption is the trap. On these facts a professional attorney — a solicitor or the state public trustee — is a completely legitimate answer, impartial and continuous, and it costs a fee rather than a relationship (ASIC MoneySmart, https://moneysmart.gov.au/manage-your-money-in-retirement/get-help-in-retirement/wills-and-powers-of-attorney). The alternative, doing nothing, is far worse: if Frank later loses capacity with no valid appointment in place, a guardianship tribunal decides who manages his money, and that may well be the same public trustee — only now without Frank ever having had a say. On these facts it is generally rational for a couple in their position to appoint deliberately, while they still can, rather than let the choice default to a tribunal later.

What if there's nobody obvious?

Plenty of people have no clear candidate — no children, or children who aren't suitable, or a family that can't be in a room together. That's not a failure and it's not unusual. A professional attorney or trustee company is a completely legitimate answer, as is appointing a trusted friend with a professional providing oversight. Every state and territory has a public trustee or guardianship body for exactly these situations; the Australian Guardianship and Administration Council links the public advocates, tribunals and public trustees across all jurisdictions (Australian Guardianship and Administration Council, https://www.agac.org.au/). The wrong answer is appointing someone unsuitable because you felt you had to pick a person.

Should you revisit it?

The right choice at 65 may be the wrong choice at 85. Your attorney ages too — they get sick, they move, their circumstances change. Review the appointment whenever you review your will.

What should you do in short?

Give this decision more thought than your executor, not less. Treat it as a job rather than an honour, and ask the cold question: who will actually protect me when I can't? Pick for trustworthiness, competence, proximity and their own stability. Understand the structure you're signing. Build in a backup and a reporting requirement. Tell your family who and why. And do it now, with a solicitor in your state, while the choice is still yours to make — because the alternative isn't that nobody gets appointed. It's that somebody else chooses for you.

Sources

Key takeaways

  • An enduring power of attorney is more consequential than an executor: your attorney acts while you're alive, often at the moment you're least able to supervise them, with access to your bank accounts and property.
  • Common default choices — the eldest child, whoever lives closest, or appointing everyone to be fair — are reflexes, not decisions, and often create governance problems rather than protection.
  • Choose for trustworthiness, competence with money and paperwork, availability, and the attorney's own financial and personal stability, since financial stress in an attorney is a genuine risk factor for abuse.
  • You can build in safeguards: naming a substitute, requiring the attorney to report to a third party, limiting their powers, and controlling when the appointment commences.
  • You can only appoint an attorney while you have decision-making capacity — if you lose capacity without a valid appointment, a guardianship tribunal decides who manages your affairs instead.

Frequently asked questions

Why is choosing a power of attorney more important than choosing an executor?

An executor only acts after you've died, when you're beyond harm. Your attorney acts while you're alive, often precisely when you're least able to supervise them, with access to your bank accounts, investments, and potentially your home. If that appointment goes wrong, you are the one harmed.

What qualities matter most when choosing an attorney?

Trustworthiness comes first, since this is access to everything you own, not a title. Competence with money and paperwork matters next, along with availability and proximity, since the role is ongoing and sometimes urgent. Their own financial and personal stability also matters — financial stress in an attorney is a genuine risk factor for misuse.

What is the difference between appointing attorneys jointly versus jointly and severally?

Jointly means all appointed attorneys must agree on everything, which is a genuine check against abuse but can freeze your affairs if one person is unavailable or uncooperative. Jointly and severally means any one attorney can act alone, which is convenient but removes much of that safeguard.

What safeguards can I build into a power of attorney?

You can name a substitute attorney in case your first choice is unavailable, require your attorney to report to a third party such as another family member or your accountant, limit what powers they have (such as requiring agreement before selling your house), and control when the appointment commences, such as only if you lose capacity.

A note on advice. This article is general information only and doesn't account for your personal circumstances. Everyone's situation is different — before acting, it's worth talking it through with a licensed adviser who knows your full picture.