Australia is often referred to as a “lucky country” to live in. We can make decisions about where and how we choose to live and as we age that doesn’t have to change. Here at Turner Freeman Lawyers, we promote and help our clients make decisions for themselves not only for now but also for later in their lives when the unexpected may occur. One avenue of protecting our clients wishes is by constructing personalised documents for their current and future needs. This article will explain the documents.
Power of Attorney
What is a Power of Attorney?
A Power of Attorney is a document in which you provide legal authority to another person or persons to act on your behalf of your financial affairs which includes;
- your bank accounts;
- buying and selling your properties;
- paying your bills;
- deal with Centrelink;
- lodge tax returns;
- your Superannuation;
- invest your money; and
- use your money for your benefit.
Are there different types of Powers of Attorney?
Yes, there are two types of Powers of Attorney.
- General Power of Attorney
Provides the legal authority to your nominated person/s to assist you with financial decisions and act for you if you are temporarily unavailable. These circumstances include if you are overseas or have suffered a temporary illness but still have capacity. You do not lose control, but the appointed person/s can act for you with regards to those things you have authorised. It can be created for a specific time or otherwise it ends upon either your death or if you become legally incapacitated.
- Enduring Power of Attorney
An Enduring Power of Attorney comes into effect if you become legally incapacitated. By appointing someone you know and trust to handle your financial affairs you can rest assured your assets and finances will be taken care of with regard to your best interests. Your nominated person/s must have been appointed prior to you losing capacity.
Do you really need a Power of Attorney?
It is a really good idea to have a Power of Attorney in place in case you suffer from temporary or permanent loss of capacity, which could happen at any time due to illness, injury or disability.
As previously mentioned, once you suffer legal incapacity the choice of who you want to act for you may be made for you and be subject to a Tribunal process.
Who should I choose as my Attorney?
Whoever you choose as your appointed Attorney must agree to act.
It is important that you choose a person or persons who you trust. This can include;
- your spouse or de facto;
- your children if over the age of 18;
- parents; and
- a trusted friend.
Advance Care Directive
What is an Advance Care Directive?
An Advance Care Directive is another document which outlines your wishes for your future personal care, health and welfare, living arrangements, end of life and medical choices should you lose mental capacity. It is separate to your Power of Attorney and your Will.
You can appoint one or more Substitute Decision Makers on your behalf. The person/s appointed must accept their position as your Substitute Decision Maker prior to you executing your document and therefore becoming valid. The person/s who you choose should be people who;
- Is 18 years or over;
- Is able to make decisions;
- Knows you well;
- You trust;
- Respects what is important to you;
- Can work out what decision you would make;
- Can make serious decisions for you during emotionally difficult times; and
- Wants to be your Substitute Decision-Maker and understands what this means.
Likewise with the Power of Attorney document this document can only be made by you if you have capacity to do so. Once you suffer legal incapacity the choice of who you want to act for you may be made for you and be subject to a Tribunal process.
We will assist you with completing the specific clauses in the Advance Care Directive, so they reflect your wishes.
I have a Will so why do I need a Power of Attorney and an Advance Care Directive?
Your Will comes into effect after you pass away. Your Power of Attorney comes into effect during your lifetime and relates to your financial affairs. When you die your Power of Attorney automatically ceases. Your Advance Care Directive deals with your health, lifestyle, medical decisions and living arrangements and ceases upon your death. They are three separate documents and serve different purposes.
If you like to make your own choices in life, particularly when it comes to protecting your assets and making sure that your lifestyle choices (even after you have lost capacity) are ones that you would choose for yourself if you were able to then we are here to assist you with these important decisions.
Please contact our specialist in this area, Tammy Sava, Senior Associate of our Wills and Estates team, located at our Adelaide and Aberfoyle Park offices. Tammy will assess your requirements and provide personalised advice. Contact us today on (08) 8213 1000 to arrange a time to meet with Tammy.