What is a Power of Attorney?
A power of attorney is a document through which you appoint and authorise one or more people to attend to your legal and financial affairs.
You can appoint your child, children, spouse or any other person(s) as your Power of Attorney.
A Power of Attorney does not assist in making decisions about your lifestyle, medical treatment or welfare. Where you live, what services you have and what health care you receive are decisions that you can only make, or if you lack capacity, by an appointed guardian.
The Power of Attorney ceases when you die. Your Executor appointed in your Will then takes over the obligation and responsibility of administering your estate.
How many types of Power of Attorney are there?
There are two types:
1. General Power of Attorney
Your Power of Attorney can be authorised to attend to your legal and financial affairs for a specific period of time. By way of example, through a Power of Attorney, an elderly and physically frail mother can authorise her daughter to attend to her banking and or payment of her bills.
This type of Power of Attorney stops operating if you lose your mental capacity (see below).
2. Enduring Power of Attorney
An Enduring Power of Attorney will continue even after you have lost mental capacity. Once you can no longer make decisions for yourself, this will give someone you trust the authority to make decisions for you.
What can I direct in a Power of Attorney?
In any Power of Attorney document, you can direct:
- When the appointment of your Power of Attorney can operate
- Restrictions and or limitations on the powers that your appointed Attorney(s) can exercise
- Whether your appointed attorneys can act together or independently when exercising the powers which you have authorised
Can I make a Power of Attorney?
If you are over 18 years old and you fully understand the Power of Attorney at the time of signing it, you can make a Power of Attorney.
Importantly, if you are a person with early stages of dementia or have a mild intellectual disability and possess the mental capacity to fully understand and know what you are signing, you may still be able to make a Power of Attorney.
If you’re not sure whether or not you have the mental capacity, you should have an assessment completed with a Doctor, Psychologist or Psychiatrist.
When should I appoint an Enduring Power of Attorney?
We would recommend you appoint an Enduring Power of Attorney to conduct your financial and legal affairs if you:
- Suffer from unsoundness of mind (including early signs of dementia), a mental illness or any other mental conditions, which could lead to losing your mental capacity, or
- You are unable to physically manage your affairs
What is an Advanced Health Care Directive?
In some Australian States, an Enduring Power of Attorney can extend to decisions about your medical issues. In other states, an Advanced Health Care Directive (sometimes referred to as a Living Will) is required to direct how medical treatment is provided to you.
Appointing an enduring power of attorney can ensure that your wishes and your best interests are fulfilled.
Why should I have a Power of Attorney?
Your Power of Attorney can look after your legal, financial and property matters. Your attorney can sign legally binding documents on your behalf. You may, for instance, be travelling overseas for an extended period of time and wish to provide your attorney access to your bank accounts to pay your bills. Alternatively, it can be useful to have a Power of Attorney if you become unwell or lose the ability to make decisions for yourself and can no longer manage your financial affairs.
Making a Power of Attorney does not mean losing control over your legal and financial affairs. It simply gives your Power of Attorney a documented and duly executed authority to manage your legal and financial affairs according to your instructions. Of course you can always revoke (cancel) Your Power of Attorney if you have the mental capacity to do so.
Who should be my Power of Attorney?
This is an important decision and one that you should think carefully about. Firstly, you should trust your attorney and be satisfied that they understand your wishes, have the skills to manage your finances and act in your best interests. They should be able to communicate decisions to important people in your life.
Your Power of Attorney should have no conflicts of interest with you and always act impartially for your best interests. Your Power of Attorney should be skilled in business and finance and must maintain an accurate record of all dealings undertaken for you.
How do I cancel or revoke my Power of Attorney?
To revoke a Power of Attorney, you must notify your Power of Attorney that you are bringing their appointment to an end. It is best to revoke your appointment in writing. You should also notify your bank and any other businesses which your attorney may have been dealing with of the revocation. If your Power of Attorney is registered so they can deal with land and property, you should register the revocation.
We are here to help
Our solicitors specialise in Wills & Estates matters throughout the Central Coast, the Hunter Region and Sydney. We have the experience and expertise to guide you through the process from beginning to end to ensure your peace of mind.
If you would like assistance with your Wills & Estates documents or wish to discuss a matter of concern to you, contact one of our Wills & Estates specialists on 1300 529 444 or fill in our contact form to arrange a free conference with a solicitor today. Contact us now! 24-hour legal advice 7 days a week
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