Power of Attorney
Why have a Power of Attorney?
Having a Power of Attorney in place can provide you with comfort knowing that when you are unavailable to sign or do something, on your behalf a trusted person can do it for you. A Power of Attorney can cover lifestyle choices, financial matters or medical decisions. Some Powers of Attorney are enduring. This means that should the person appointing the attorney become incapacitated or they lose their decision-making capabilities then the appointment of attorney continues. Hence it endures after they lose capacity. The person giving the power is known as the principal and the person receiving the power is the attorney.
- Make or revoke a Will,
- Make or revoke a Power of Attorney,
- Make decisions about children
- Consent to marriage matters such as divorce
- Manage matters after the death of the principal
- Consent to an unlawful act
General Power of Attorney is a non-enduring appointment where a person, also known as the principal, is:
- unavailable for a period of time; and
- wants someone else, the attorney to make financial decisions for them during this time.
General Power of Attorney is generally used for a specific purpose and for a fixed period of time.
General Power of Attorney should not be used for long term future planning. They do not continue after the principal loses decision making capabilities.
Example: You are booked to go on a holiday and your dream home you’ve always wanted to buy comes on the market for auction. You’ll be overseas so you appoint your best friend to attend the auction to bid on your behalf. You appoint your friend through a General Power of Attorney specifically for them to bid and if successful sign a contract. You can now go overseas knowing the right legal appointment is in place for your friend to sign the contract in your name.
A Medical Power of Attorney is a document where a person, the principal, appoints someone, the agent, to make medical treatment decisions on their behalf. If someone over 18 can’t make a medical decision and the matter is not an emergency, and there is no Medical Power of Attorney or court order in place then decision for treatment will fall to (and in order) their:
- Primary carer
- Nearest relative over 18;
- Son or daughter
- Mother or father
- Brother or sister
- Grandparent etc…
Having a Medical Power of Attorney in place gives you comfort knowing the person you have appointed is one whom you want to have the decision making capabilities. You then have the opportunity to speak to them about what type of treatments you want in advance, rather than leaving it to chance.
Being appointed as someone’s Medical Power of Attorney is an important appointment. It is vital you speak with the principal to learn more about their beliefs and medical choices.
A Medical Power of Attorney is enduring, this means that should you lose your decision making capabilities the appointment commences. You also can limit the appointment, such as how long the appointment is. You can also appoint more than one person as well as how to control how they make decisions. The preparation of a Medical Power of Attorney is best left to a lawyer to ensure it is properly prepared.
A Financial Power of Attorney is a document where a person, the principal, appoints someone, the agent, to make financial decisions on their behalf. These typically include matters relating to financial and property matters.
A Financial Power of Attorney is made whilst the principal has decision making capabilities. It can commence immediately whilst the principal can still make decisions or when they lose their decision-making capabilities. A principal can limit the appointment to specific tasks and can appoint more than one attorney.
Example: Margaret’s husband died three years ago and her home is getting too hard to manage. Margaret has recently been diagnosed with Alzheimer’s and can still make decisions on her own. She’s not quite ready to move out of her home but doesn’t want to be a burden for her son David either.
With a Financial Power of Attorney in place
She appoints David to be her financial attorney. She has said to him that should the time come for her to move into care that would be ok. With the Financial Power of Attorney in place David can sign contracts on his mum’s behalf for her future accommodation. He can also list and sell her home to fund the next stage of his mother’s life.
Without a Financial Power of Attorney in place
Margaret never got around to putting into place her Financial Power of Attorney in place. Her Alzheimer’s advances quickly and she loses her decision-making capabilities. David can’t cope looking after his mum in her old home, especially with his work and own family commitments; she needs to move into care. David now has to make an application to become her Administrator, so he can sell her home and sign the nursing home contracts. He must fill out the Victorian Civil and Administration application, gather the necessary supporting evidence and wait for a hearing date. Then he has to attend the hearing whilst all along if Margaret had appointed him as her attorney this could have been all avoided. All of this took months and time away from work and his family in addition to stress for him and his mother.