No Power of Attorney in the ACT: What Happens When a Parent Loses Capacity

A parent in Canberra receives a dementia diagnosis, or a spouse suffers a sudden stroke, and the family discovers there's no enduring power of attorney in place. The bank freezes their accounts. Medical decisions pile up without anyone clearly authorised to make them. Nobody in the family knows what legal authority they actually have, and the answer depends on whether the immediate need is medical or financial.

Medical Decisions: The Health Attorney Safety Net

For healthcare decisions, the ACT has a statutory fallback. Under Part 2A of the Guardianship and Management of Property Act 1991, when an adult loses decision-making capacity and has no EPA or court-appointed guardian, the senior treating doctor or dentist must identify a "health attorney" from a fixed priority list:

1. The patient's domestic partner (including de facto partners)
2. An unpaid carer who regularly assists the patient
3. A close relative or close friend

The doctor formalises this by completing Approved Form AF2017-205. The health attorney can then consent to or refuse standard medical and dental treatments on the patient's behalf.

But the health attorney framework has strict limits. A health attorney has no authority over the patient's bank accounts, property, bills, or financial affairs. Their power is also limited to standard treatments — they cannot authorise special medical procedures or unilaterally refuse life-sustaining treatment. If the health attorney's decision contradicts a valid Health Direction the patient made while they had capacity, the treating doctor must refer the matter to the ACT Public Trustee and Guardian.

If eligible family members disagree about a treatment decision, the senior treating doctor or dentist must also refer the dispute to the PTG. There's no mechanism for the family to resolve it among themselves when formal consent is required.

Financial Decisions: Nobody Has Authority

This is where the absence of an EPA hits hardest. Without an EPA covering property matters, nobody — not a spouse, not an adult child, not a sibling — has automatic legal authority to access the incapacitated person's bank accounts, pay their bills, manage their investments, or deal with their property.

Banks will freeze the accounts as soon as they learn the account holder has lost capacity. Mortgage payments, utility bills, insurance premiums, and aged-care fees stop being paid. The family home can't be sold to fund residential care.

The only path forward is an application to ACAT for a financial management order.

Applying to ACAT for Guardianship or Management Orders

The ACT Civil and Administrative Tribunal handles applications for guardianship orders (covering personal and health decisions) and management orders (covering financial and property affairs). Any interested party can apply — a family member, a friend, a health professional, or the PTG itself.

The application requires:

• A completed ACAT application form
• A Medical and Psychological Report from a registered practitioner confirming the person's decision-making impairment
• Information about the person's living situation, family relationships, and the specific decisions that need to be made

There's no filing fee for guardianship or management applications. Once the application is lodged, ACAT notifies all interested family members and carers, and schedules a hearing — typically four to six weeks from lodgement.

ACAT can appoint a private individual (usually a family member) or the PTG as guardian or manager. The tribunal favours private appointments where a suitable person is willing and able to act, but it has strict oversight requirements. Guardianship orders are capped at three years before requiring a formal review.

Emergency Situations

If there's an immediate risk — a medical crisis requiring urgent consent, a risk of financial exploitation, or assets that will be lost without rapid intervention — you can request an emergency hearing from ACAT. The tribunal can issue an emergency order appointing the PTG as temporary guardian or manager, valid for a maximum of 10 days.

If you need a longer-term order, you must file the standard application before those 10 days expire. The emergency order simply buys time; it doesn't replace the full process.

The Cost of Not Having an EPA

When the PTG acts as financial manager, their fee structure includes $340 per hour for standard matters and a capital commission of 4.4% on the first $300,000 of assets, 3.3% on the next $300,000, and 2.2% on the next $300,000. For a Canberra home worth $800,000, that's a commission well over $20,000 — charged from the person's own assets.

Even when a private family member is appointed as manager, the ACAT process adds weeks of delay, and the ongoing reporting obligations consume significant time. An EPA that costs a few hundred dollars to prepare (or nothing if done without a solicitor) would have avoided all of it.

What You Can Do Right Now

If your family member still has moments of lucidity, a medical assessment confirming current capacity might make it possible to execute an EPA now. The standard under the Powers of Attorney Act 2006 requires that the principal can understand, retain, weigh, and communicate information relevant to the EPA. Capacity fluctuates with some conditions, and a favourable assessment on a good day can be enough.

If capacity is genuinely gone, the statutory Health Attorney framework addresses standard medical and dental treatment; for financial authority, the ACAT application is your only option, and the sooner you file, the sooner you'll have legal authority.

Our Australian Capital Territory Power of Attorney Kit walks you through both paths — executing an EPA while capacity remains and navigating the ACAT fallback when it doesn't. Get it before a crisis forces the decision.

See more Australian Capital Territory guides →