An Enduring Power of Attorney is a legal document that gives a trusted person (your Attorney) the power to make financial, medical and personal decisions for you. It is the only way to control who will make important decisions on your behalf if you are unable to do so yourself.
If you do not have an Enduring Power of Attorney then you should contact us to find out more.
1. Why do I need an Enduring Power of Attorney?
You can provide someone with the power to manage your financial and property affairs while you have legal capacity but wish to either allow someone to handle your affairs while you are overseas or relieve yourself of the day to day demands of financial paperwork and record keeping. These documents are called ‘General Powers of Attorney’. They are often done to cover a short period of time, for example a trip overseas. A General Power of Attorney becomes invalid if the Donor loses capacity. While you have capacity your attorney can only act as directed by you.
Importantly, ‘Enduring’ means that the power continues if you lose capacity to make decisions for yourself for either a short time or more permanently as a result of an accident or illness. In these circumstances your Attorney can make financial, medical and personal decisions for you. Decisions include, among other things, paying insurance, paying a mortgage, consenting to medical treatment, and deciding daily dress and diet.
It does not matter whether you are old or young, in business or not, if you do a lot of travelling or not, there are great benefits in having an Enduring Power of Attorney.
In the document you can specify the powers you are giving and when they commence.
2. Should I appoint my lawyer as my Attorney?
The person you appoint does not need to have any special qualification although the appointment should be done with careful thought as you are providing your Attorney with considerable power.
An Attorney should:
- have integrity;
- be willing to act in that capacity;
- have competence in areas of relevance;
- be able to act in a business-like manner;
- be able to spare the time necessary for the task;
- live in the locality in which they are to act;
- be agreeable to respecting the confidentiality of the donor’s affairs; and
- be impartial and have no known conflicts of interest.
3. What are my Attorney’s responsibilities?
Your Attorney must
- act in your best interests;
- avoid situations where there is a conflict of interest;
- make the same decision that you would have made;
- keep accurate records of dealings and transactions made on your behalf; and
- keep your property and money separate from their own.
Your Attorney cannot sign a Will on your behalf.
4. Should I appoint more than one Attorney?
We recommend that you appoint more than one Attorney (or alternative Attorneys) as it allows the power to continue even if one Attorney is unable or unwilling to act.
Enduring Powers of Attorney are very flexible. You can appoint multiple Attorneys to act separately or together. For example, you can appoint siblings with the proviso that they must act together. You can appoint several Attorneys with the proviso that the view of the majority prevails. You can also appoint different Attorneys to act in relation to different matters.
We can give you legal advice on who to appoint and how to effect the appointment.
5. Do I have to pay my Attorney?
This is not common. It should only be contemplated for financial powers in circumstances where you are appointing a professional advisor as your Attorney.
6. What is capacity?
Capacity is important for two reasons, first, you must have capacity to make a Power of Attorney.
The test for having capacity to make an Enduring Power of Attorney is that you understand:
- the powers you are giving to your Attorney;
- when your Attorney can exercise the powers;
- that you can direct or limit your Attorney in any way; and
- that you can revoke the powers while you have capacity.
If there is any doubt about capacity, it is best to get in touch with your GP and ask for a written opinion. If this is done it is wise to have the Power of Attorney signed on the same day as you get the independent assessment so there can be no subsequent claim that the appointment was invalid.
Secondly, capacity is important because if lose capacity your Attorney can make decisions on your behalf.
7. How do I make an Enduring Power of Attorney?
The advice of a lawyer is helpful to ensure that the document is valid and appropriate for your financial, medical and personal circumstances.
It is also important to get advice because an Enduring Power of Attorney can be unintentionally revoked by death of a joint Attorney, marriage or divorce.
We can prepare the required form and arrange for you and your Attorney(s) to sign the document.
To find out more about General and Enduring Powers of Attorney and their benefits call us on 02 6201 7243 or email [email protected].