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Home | Wills & Estate Planning | Powers of Attorney

Preparing a Power of Attorney

A power of attorney can be just as important as having a will. It means that someone is legally appointed to act on your behalf regarding your financial and legal affairs.

This is particularly important if you have either permanently or temporarily lost the capacity to make such decisions yourself. This could be a result of injury or illness or because you are otherwise unable to appropriately or conveniently attend to those affairs yourself.

FAQ

What is a power of attorney?

What is a power of attorney?

A power of attorney is a legal document that allows you to choose one or more trusted persons to make financial and legal decisions on your behalf.

The person you nominate is called your ‘attorney’. Your attorney can assist you and act on your behalf in many ways, including the following:

  • access your bank accounts;
  • transfer, sell and otherwise deal with your real estate;
  • pay your bills and deal with service providers;
  • sign contracts and agreements;
  • deal with Centrelink, Medicare and other government agencies.

You can also specify conditions as to how and when your attorney can act.

Why do I need a power of attorney?

Why do I need a power of attorney?

Having a power of attorney allows someone you trust to assist you with your financial and legal affairs. There may be times during your life where you are unable or unavailable to attend to your financial or legal affairs or make decisions.

A power of attorney is a document that is regulated by law and is an important part of estate planning.

Who should I appoint?

Who should I appoint?

It is important you appoint people you trust. They must be at least 18 years old and mentally competent.

When you choose someone to act as your attorney, depending on any restrictions you have included in your document, you give them a great power. You should feel comfortable that the person you have chosen will make appropriate decisions for you and will be willing and able to act.

Should I allow my attorney to act even if I still have mental capacity?

Should I allow my attorney to act even if I still have mental capacity?

Most people acknowledge the benefit of having someone who can act for them if they have lost the mental capacity to act for themselves. However, there may be other times where you need assistance but still have mental capacity. For example:

  • you may have placed your house on the market and need to travel overseas – your attorney can sign the contract and transfer for you while you are away;
  • you may be unwell with the flu and do not have the energy to go to your bank – your attorney can attend for you.

What if I do not have a power of attorney?

What if I do not have a power of attorney?

If you do not have a power of attorney and become unable to make one then no one may have authority to act on your behalf in relation to your financial and legal affairs.

You may become unable to make one if your mental capacity declines to such a degree that you can no longer understand the legal effect of a power of attorney. This may be due to old age, illness, or an accident.

Any asset you own in your sole name may become inaccessible without anyone having the authority to access it. For example, service providers will not speak to anyone other than the account holder, money cannot be withdrawn from bank accounts, and property cannot be sold without the authority of the account holder or owner.

A family member, friend or other interested person would then need to make an application to the South Australian Civil and Administrative Tribunal ("SACAT") for someone to be appointed to act on your behalf. It is then up to the SACAT, and not you, to make that decision.

Doesn't my partner or spouse automatically have authority?

Doesn't my partner or spouse automatically have authority?

No. Nobody automatically has authority to deal with your personal assets, and legal and financial affairs unless you have specifically authorised them.

Many assets owned jointly with another person can be dealt with by just one of the owners. For example, if you own a bank account jointly with your partner or spouse, then usually they do not need specific authority from you to withdraw funds from your joint account. As an owner of that bank account, they can act alone.

This does not apply to all assets. In particular, real estate cannot be transferred to other persons without all owners (or their attorneys or legal representatives) agreeing.

Can my attorney make medical decisions?

Can my attorney make medical decisions?

No, unless you have also named them as your substitute decision-maker in your advance care directive.

A power of attorney deals with financial and legal affairs only, and not medical decisions.

If you wish to appoint someone to make medical and lifestyle decisions on your behalf, then you will need to prepare a separate document. This document is called an advance care directive.

A power of attorney and advance care directive are two separate documents and regulated by separate pieces of legislation.

Will I lose control over my affairs?

Will I lose control over my affairs?

No. Appointing an attorney does not mean that they automatically take over. It also does not mean you can no longer make financial and legal decisions yourself.

You give your attorney authority to make financial and legal decisions, but you do not give away your authority. You can also specify the scope of their authority if you wish. As long as you are mentally capable you can still make your own decisions if you wish.

It is important that you carefully choose your attorney. You should only name persons that you trust.

When can it be used?

When can it be used?

You can specify when you would like your power of attorney to be used.

You may feel comfortable for your attorney to have the ability to act for you at any time during your life. You may want your attorney to be able to assist you regardless of whether or not you have mental capacity. For example, you may be travelling or unwell but, but still want your attorney to be able to act on your behalf during this time.

You may also wish to specify a time frame that your power of attorney can be used.

Alternatively, you may not want anyone to have the ability to act for you until and unless a medical practitioner states that you no longer have the mental capacity to manage your legal and financial affairs.

Is there a difference between an enduring power of attorney and a general power of attorney?

Is there a difference between an enduring power of attorney and a general power of attorney?

Yes.

The term 'power of attorney' is often used interchangeably with the term enduring power of attorney, however, there are important differences between the two.

An enduring power of attorney endures or continues to operate even if the person who made it loses their mental capacity.

A general power of attorney will cease to operate if the person who made it loses their mental capacity.

Enduring powers of attorney are prepared more frequently than general powers of attorney.

Can I change my power of attorney?

Can I change my power of attorney?

You can change or revoke (cancel) your power of attorney at any time, so long as you still have the mental capacity to understand its effect.

If you no longer want the person you have nominated to act as your attorney, it is important you consult us so that your current power of attorney can be revoked in accordance with the relevant laws.

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