May the power be with you

There are ways to ensure financial affairs remain in order if a person is unable to sign important documents. This article explains the various Powers of Attorney arrangements available; their types and uses.

What would happen if you were physically unable to sign important documents or became mentally incapable of making key decisions? This is when a Power of Attorney becomes a vital tool in managing your life – when you are unable to.

Put simply, a Power of Attorney is a legal document that allows another person to act on your behalf. There are three different types of Power of Attorney (POA) arrangements – a General POA, an Enduring POA and Medical POA. The differences are important to note for the purposes of managing your estate.

Types and uses

Under a General Power of Attorney you appoint someone to act for a specific period of time or for a specific purpose. For example, if you are taking an extended trip overseas, you can appoint someone to look after your affairs at home. About the only things your attorney can’t do is to make a will or enter into a contract of marriage on your behalf. A General POA ceases to be effective if you lose your mental capacity.

An Enduring Power of Attorney acts in the same way as a General POA but it has the advantage that if you lose the capacity to make decisions for yourself your attorney will be able to do so. Enduring Powers of Attorney can cover your financial affairs, or, with an Enduring Power of Guardianship, your nominee can also make decisions regarding lifestyle issues, such as where you live.

In many Australian states, a Medical Power of Attorney may also be implemented. These can help to ensure that your wishes in relation to medical treatment will be considered if you are unable to express those instructions yourself.

Appointing or revoking an attorney

Although the person you appoint as your attorney has a legal obligation to act in your best interests, it is obviously important that you trust your nominee and are confident that he or she understands and will respect your wishes. In many cases you can appoint joint attorneys, and even stipulate that they must agree on any decision.

Most people appoint a spouse, partner, adult child or other trusted family member as their attorney. In some cases, professionals such as an accountant or lawyer may fill the role.

Establishing a Power of Attorney

Enduring Powers of Attorney will often be prepared by a lawyer when wills are made, although relevant forms can also be obtained from legal stationers or downloaded from the websites of relevant state government authorities.

A Power of Attorney may be revoked simply by telling your nominee that they are no longer your attorney and the original and all copies of the POA form destroyed.

The rules for Powers of Attorney vary from state to state, so it is always beneficial to seek professional advice when drawing up this important legal document.

For more information about Estate Planning please contact us on 03 9836 8399.