Power of Attorney
A Power of Attorney is a legal document by which you authorise someone (known as your Attorney) to act on your behalf during your lifetime. It only operates with respect to your financial affairs and property. Your Power of Attorney ceases to operate upon your death.
Provided that you are over 18 years of age and you are not mentally incapacitated you may appoint an Attorney. Your company may also appoint an Attorney to sign documents on its behalf.
The powers and responsibilities you give to your Attorney are generally significant and far reaching. Although it does not authorise the Attorney to act against your wishes there is a danger of the power being used against your interest. Therefore it is of critical importance that the person you appoint is someone well known to you and trusted. Many people appoint their spouse, a son or daughter, another relative, a close friend or a legal or accounting advisor. You may appoint more than one attorney to act either together or separately.
You may consider it appropriate to appoint an Attorney to act on your behalf in the event that you:
- Travel, particularly overseas;
- May be involved in an accident or become ill and are therefore incapable of attending to some or all of your affairs;
- Become less mobile due to accident, illness or old age;
- Lose your mental capacity to manage your affairs.
There are various types of Powers of Attorneys, Clelands can advise you on the appropriate Power of Attorney for your purposes
Types of Power of Attorney
General Power of Attorney
This authorises your Attorney to do almost anything that you can do yourself. It ceases if you become mentally incapacitated.
Enduring Power of Attorney
Similar to General Power of Attorney but continues to operate even if you become mentally incapacitated. If you do not have an Enduring Power of Attorney and you become mentally incapable of handling your own affairs then, a friend or relative can apply to the Supreme Court to be appointed to administer your affairs pursuant to the Aged & Infirm Persons Property Act. There are costs associated with this.
Specific Power of Attorney
Restricts the Attorney’s powers to specific actions or for a limited time or to act in a specific place (eg it may be given for the purpose of selling a particular item of real estate or while you are interstate or overseas)
Delayed Action Power of Attorney
Only become operative if you become incapable of acting yourself, rather than becoming operative once you sign it. While you are of sound mind your Power of Attorney may be revoked at any time. Your Attorney has an obligation to act in your best interests and at all times act with reasonable diligence and keep accurate records of all transactions. Once an Attorney has been appointed the Attorney must continue to act until he or she renounces the power, the Power of Attorney is revoked by you or you die.
Making a Power of Attorney while you are of sound mind may avoid otherwise unnecessary expense and complications in dealing with your affairs.
Advanced Care Directive
This is a legal form that allows people over the age of 18 years to:
- Write down their wishes preferences and instructions for future health care, end of life, living arrangements and personal matters;
- Appoint one or more Substitute Decision Makers to make these decisions on their behalf when they are unable to do so themselves.
It cannot be used to make financial decisions. If you provide a written direction for the refusal of health care, it must be followed if relevant to the circumstances at the time. All other information written in your Advance Care Directive is advisory and should be used as a guide to decision-making by your Substitute Decision Maker(s), your health practitioners or anyone else making decisions on your behalf. It is your choice whether or not to have an Advanced Care Directive. No one can force you to have one or to write things you do not want. These are offences under the law.
You can change your Advance Care Directive at any time while you are still able by completing a new Advance Care Directive Form. You new Advance Care Directive Form will replace all other documents you may have completed previously, for example an Enduring Power of Guardianship, Medical Power of Attorney or Anticipatory Direction.