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A Power of Attorney is just as important as a Will. While a Will operates on your death, a Power of Attorney operates during your life. A Power of Attorney is a legal document authorising another person, such as a trusted friend or relative, to act on your behalf in your affairs. This person is known as your attorney.
There are two types of Power of Attorney:
General Power of Attorney
A General Power of Attorney gives authority to the attorney to deal with your assets, including for example bank accounts, property and shares. An attorney should be someone who you trust and who is over 18 years old. A General Power of Attorney ceases to operate if you pass away or lose the mental capacity to make your own decisions and it does not authorise the attorney to make health decisions for you.
Enduring Power of Attorney
An Enduring Power of Attorney is used to appoint a trusted person or people (over the age of 18) to make financial and/or personal decisions on your behalf. It differs to a General Power of Attorney as it continues to operate after you have lost the mental capacity to make your own decisions. An Enduring Power of Attorney ceases if you pass away.
What can an Attorney make decisions about?
An attorney can make decisions about:
- Personal (including health) matters, which relate to personal or lifestyle decisions which can include support services, where and with whom you live or health care and legal matters that do not relate to your financial or property matters;
- Financial matters which relate to decisions about your financial or property affairs including paying expenses, making investments, selling property (including your home) and carrying on a business.
Choosing your Attorney(s)
To be eligible to be an attorney, a person must:
- have capacity to make decisions;
- be 18 or older;
- not be a paid carer or your paid carer in the past 3 years, your health provider, a service provider for a residential service where you live, be bankrupt or taking advantage of laws of bankruptcy (if appointed for financial matters).
You should choose your attorney(s) carefully.
Preparing your Power of Attorney
Before you prepare an Enduring Power of Attorney you should read through the Form 9 – Enduring Power of Attorney Explanatory Guide and consider who you want to appoint as an Attorney and talk to them about it. An Enduring Power of Attorney is a legal document and can significantly affect your legal rights, ensure you seek legal advice before completing an Enduring Power of Attorney.
How do I cancel or revoke a Power of Attorney
A person who has appointed another person to act as their attorney can cancel or revoke a Power of Attorney so that the person authorised can no longer act on their behalf, provided that they have capacity. It is important to revoke a Power of Attorney in writing by having your Solicitor complete a Revocation of Power of Attorney and providing a copy of it to the attorney. After a Power of Attorney is revoked all copies of the Power of Attorney in the attorney’s possession should be returned to you or your Solicitor.
Making a Power of Attorney is an important part of preparing your estate plan, which may also include a Will and Advance Health Directive. Estate planning is critical for individuals from all walks of life as it ensures appropriate arrangements are in place to take care of your loved ones should you unexpectedly pass away.
Estate planning may also involve maximising the value of your estate by introducing strategies to reduce taxes and other expenses. It may be as simple or complex as your needs dictate.
Should you be physically unable to attend our offices we are more than happy to arrange an in home visit to ensure your needs are met with minimal discomfort to you.