A power of attorney is a legal document in which you appoint a person (known as your ‘attorney’) to make certain decisions on your behalf.
This document must be signed while you have ‘legal capacity’ – a term used to describe whether you can fully understand the nature and consequences of what you are signing. Tanya Herbertson, Director and head of the Wills & Estates team at Snedden Hall & Gallop Lawyers, discusses 3 things you should know about powers of attorney.
1. What types of powers of attorney are available?
General power of attorney
A general power of attorney is only valid while you have legal capacity. It may be made to give a trusted person the ability to make financial decisions when it is necessary or convenient. For example, an attorney may be appointed to handle your financial affairs if you are going overseas or interstate for an extended period.
Enduring power of attorney
An enduring power of attorney continues to be valid even if you lose legal capacity due to disability or illness. It empowers your chosen attorney to make financial, property, lifestyle and health decisions subject to your specified limitations and directions.
The document may be drafted so that the power for the attorney to make decisions in relation to financial matters comes into effect immediately, however, it is more common that this power will only commence at the time you lose capacity. The power for your appointed attorney to control healthcare and personal care matters will only ever come into effect after you lose capacity.
Importantly, an enduring power of attorney allows you to choose in advance who you want to act as your attorney should you lose capacity. It offers you an opportunity to provide direction and limitations on your appointed attorney to match your wishes. For example, your directions to your attorney may include the types of health care you wish to receive or abstain from.
For either general or enduring powers of attorney, you may wish to appoint an attorney now but delay the time when the attorney begins to act. All powers of attorney will cease to have effect when you die; the executor named in your will then assumes control of your estate. Your will cannot allow a person to make decisions for you while you are alive.
2. Who can I appoint as my attorney?
The person you appoint should be someone you know and trust to make decisions on your behalf. You can name any person over the age of 18. Your attorney should have sufficient financial and business skills to manage your affairs properly. He or she must be available when needed, be able to make impartial decisions that are in your best interests, and be able to keep accurate financial records.
You may appoint more than one person to act as your attorney. When more than one attorney is appointed, you may require them to act jointly or separately when making decisions. To safeguard your assets and wellbeing in the event your chosen attorney dies or is otherwise unable to act, it is wise to consider appointing an alternate attorney.
3. Do I need to an enduring power of attorney?
Without an enduring power of attorney your family members do not automatically have the right to make financial, property, medical or personal decisions on your behalf if you lose capacity. Your loved ones will have to apply to the ACT Civil and Administrative Tribunal to appoint a guardian for your personal needs and/or a manager to handle your financial affairs. Until a guardian is appointed, you have no control over decisions that may be made while you are mentally incapacitated. This could leave you in limbo medically, financially or personally. It is always advisable to prevent this scenario by making an enduring power of attorney in advance.
How can Snedden Hall & Gallop assist you?
At Snedden Hall & Gallop, we have vast experience in ensuring that our clients are supported in the creation of their important personal documents including wills and EPAs. Tanya Herbertson and the Wills & Estate team can work with you to create a power of attorney and an enduring power of attorney and ensure that your wishes are communicated and documented. We will help you specify what decisions your attorney can make on your behalf. In addition, we have a strong litigation team who can assist you if an attorney misuses their power. Please contact us by phone on (02) 6285 8000 or by email.