A power of attorney is a legal document in which one person nominates to give legal authority to another person to act on their behalf (often a friend or family member). In effect, a power of attorney allows a person to delegate the management of their affairs to someone they trust.
Appointed powers of attorney can take on many responsibilities. Principals can use their power of attorney to conduct their dealings within Australia while they are overseas, this can include the buying and selling of property, managing a bank accounts, finances and investments, voting at meetings and more.
There are two different types of Power of Attorney:
- General Power of Attorney – Gives the Attorney authority to make decisions for a specific reason, event or for a specific period.
- Enduring Power of Attorney – The Attorney continues to have authority to act on your behalf if you lose the ability to manage your own affairs.
General Power of Attorney is typically used in business or property transaction to give the Attorney the authority to run a business or sign documents for a specific duration or reason. For instance, to sell a property for you while you are overseas It’s used while you can still make your own decisions and ends once you no longer can (i.e. you lose capacity).
Enduring Power of Attorney, on the other hand, can be used at any time to assign someone to make financial and/or medical decisions on your behalf. It is commonly used when someone is overseas, interstate, too busy, elderly or unwell.
For financial decisions, you can nominate whether you want the attorney to begin making financial decisions for you straight away or at some other date or occasion, such as once you’ve lost the ability to make these decisions.
Your attorney’s power to make personal decisions only starts when you lose capacity to make these decisions.
Choosing your attorney
When you select an enduring power of attorney, the attorney can make personal and/or financial decisions on your behalf, which will have the same legal impact as if you’d made them yourself (subject to any limitations you enforce in the contract/ document).
Find someone you trust who’d be willing to take on the responsibility. Consider the following;
- They be at least 18 years old
- They must not be your own paid carer (a person receiving a carer’s pension is not considered a paid carer)
- They must not be your health provider
- They must not be service provider for a residential service where you are resident of the facility
- Choosing someone you trust is the most important consideration.
- Its important to consider a backup Power of Attorney
- Anyone can be your Attorney under Power; they don’t need to be family or hold any formal qualification.
- For a financial attorney, consider someone who you know is responsible with their own finances and understands financial matters.
- For personal matters, consider family members or a close friend who know you well and understand your personal wishes and health care needs.
Choosing your Attorney is a very important decision, and it’s not always easy. The person you choose will have a great deal of decision-making power and will be taking on some often-difficult responsibilities.
Be vigilant who you choose as your attorney. You’re potentially giving this person complete control over your assets and the ability to make important personal decisions about your health care and home/ support care when you are unable to do it yourself
What if there Is no one suitable?
When you don’t have anyone suitable to appoint as your attorney for personal or financial decisions you can apply to appoint a Public Guardian or Public Trustee to work on your behalf. They can assist will free wills, financial and investment matters as well as enduring powers of attorney.
The law regulating powers of attorney in Australia is state based. This means that each Australian State or Territory has a different form of document enabling a person to make legal and financial decisions on behalf of another person. All this information can be found online. If you are having problems finding this information, please let us know and we can assist you.
For our local Qld clients, you can find information here