Enduring Power of Attorney
A power of attorney is one of the most important legal documents that you can have for succession planning for your family. It allows you to legal appoint someone you trust to be in charge of important decisions for you.
A General Power of Attorney allows you to appoint someone to be in charge of your financial affairs whilst you still have capacity. For instance, this could be for someone to be in charge of your financial matters whilst you are overseas.
An Enduring Power of Attorney allows you to appoint a person or persons to be in charge of health/personal and/or financial matters for you. It continues even after you lose capacity.
Enduring Powers of Attorney which include decisions for personal and health matters can only come into effect once you lose capacity. However, if you appoint an attorney for financial matters, you can choose when the appointment comes into effect. Commonly, this is also when you lose capacity, but you can choose other options such as immediately, or at a particular time.
Our succession planning lawyers are available to assist you with the preparation of a power of attorney 7 days per week. It is a requirement that a person making a power of attorney has capacity. This often means that we are required to attend on short notice at your or your loved ones home, nursing home or hospital to ensure that valid documents are in place.
What are health/personal decisions?
Personal matters relate to decisions about your care and welfare such as where and with whom you live and any support services you may need. They often include legal matters that do not relate to your financial or property matters.
Health matters are a personal matter and relate to decisions about your health care. Health care includes most medical treatments, procedures and services to treat both physical and mental conditions. When you are nearing the end of your life, health care also includes treatments aimed at keeping you alive or delaying your death (life-sustaining treatments).
What are financial decisions?
Financial matters relate to decisions about your financial or property affairs, including decisions about paying expenses, buying property, accessing your superannuation, making investments, accessing your bank accounts, selling property (including your home) or carrying on a business.
Power of Attorney FAQ’s
Who can make a Power of Attorney?
What is the person making an Enduring Power of Attorney called?
What does ‘having capacity’ mean and why is it relevant?
Having capacity to make a decision for a matter means that you are capable of understanding the nature and effect of decisions about the matter, freely and voluntarily making decisions about the matter and communicating the decisions in some way.
This is an important term as when you lose capacity it means you cannot do one or more of the above matters and therefore you cannot alter or revoke your enduring power of attorney and any valid document may be triggered into effect.
When should a Power of Attorney be registered with the Land Titles Office?
What happens if I don’t have an Enduring Power of Attorney?
What should I do to prepare for an appointment to discuss making a power of attorney?
You should think about your personal views, wishes and preferences. A proper consideration of the matters which are important to you now and in the future is important so that any Enduring Power of Attorney document can set your restrictions or emphasise your wishes. Therefore it is important that you are able to convey this to your solicitor during any appointment.
By preparing an Enduring Power of Attorney, you are letting your attorney(s) and other people know about your views, wishes and preferences, but you are not giving binding instructions. An attorney(s) must take your views, wishes and preferences into consideration when making decisions on your behalf. However, they are not bound by them. If you want something binding, then you should consider preparing an Advanced Health Directive.
Think about what matters most to you and what is important for your quality of life now and into the future. This might include where you would prefer to live, the friends and family you like to see, your healthcare preferences, your culture and your religion.
Who can be an Attorney?
You are able to nominate any person or several persons to be your Attorney(s). These should be people who you trust and who you have explained your wishes, desires and preferences in the circumstances that you lost capacity.
A person cannot be appointed as your attorney if they are under 18 years of age, if they are bankrupt or if they are a paid carer for you.
You can appoint a family member, friend, colleague, or professional such as an accountant or lawyer.
What are an Attorney’s responsibilities?
It is a criminal offence for an Attorney to not act in your best interests.
In relation to your health care, your enduring attorney must ensure that any decision made for you contributes to your health and wellbeing and must take into account the advice of your doctor or health care provider. They have a duty to ensure they maintain records of financial dealings and transactions.
Can I revoke an enduring power of attorney?
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