What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a specific document that empowers a trusted individual to make significant financial, property, and certain personal decisions on your behalf. Your attorney can make decisions for you when you cannot do so yourself. An Enduring Power of Attorney is a crucial aspect of planning for the future, although contemplating it may be challenging. But don’t worry; we’re here to support you throughout the process.
Why do you need an Enduring Power of Atorney?
When you become unable to make or comprehend your decisions, like after an accident or illness, or when you’re overseas and unreachable, an Enduring Power of Attorney grants the person you chose the authority to make decisions and sign documents on your behalf.
These decisions may include managing your finances and bank accounts, paying bills, handling the sale or rental of your home, finding a more suitable residence, or signing specific and important documents.
Our experienced lawyers can prepare your Enduring Power of Attorney document. We can provide expert advice to ensure its legality and alignment with your wishes.
Is there a difference between a General Power of Attorney and an Enduring Power of Attorney?
The distinction is a bit outdated these days, but the primary difference lies in when and how long the attorney’s power remains valid.
A General Power of Attorney allows a person to make financial decisions while you still have decision-making capacity. However, if your capacity diminishes and you can no longer make or comprehend your decisions, only an Enduring Power of Attorney will be legally effective. These days most people have an enduring power of attorney.
Who can appoint an Enduring Power of Attorney?
To create a legally binding Power of Attorney document, you must be at least 18 years old and of sound mind. This means completing the power of attorney and having it witnessed while you are competent and understand the implications is critical.
If you have lost decision-making capacity, it is too late to prepare a Power of Attorney. No one else can make a Power of Attorney for you.
What if I don’t have an enduring Power of Attorney?
Suppose you haven’t appointed your attorney, and you lose capacity. In that case, your partner or close family member can apply to the Civil and Administrative Tribunal or to become your financial decision maker. However, the Tribunal will appoint an independent guardian or administrator if your family member is unfit for this role.
Can I revoke or change my Enduring Power of Attorney?
Yes, you can, as long as you are mentally fit.
What is a Medical Power of Attorney?
A Medical Power of Attorney is a specific type of power of attorney. It is a separate document required for medical decisions. An enduring power of attorney cannot be used for medical decisions.
If you wish the same or another person to make decisions regarding your medical treatment, creating a separate Medical Power of Attorney is essential.
Why do I need a lawyer to prepare an Enduring Power of Attorney or Medical Power of Attorney?
The Enduring Power of Attorney document is one of the most crucial and decisive documents you can create. It determines the fate of your entire estate and the outcomes of your life’s work and efforts, depending on the person(s) you nominate as your attorney. While you can complete this document without legal advice, working with an experienced lawyer ensures a rock-solid document without any room for error.
Our lawyers listen to your unique values and wishes. We explain all available options when preparing a Power of Attorney, helping you make the best decisions for your situation. We ensure you understand every possible outcome of giving someone power over your financial and personal decisions. The document will include the correct wording to provide clarity and compliance with your wishes. There will be no ambiguity that could lead to disputes or challenges from family, relatives, or the court. Finally, and importantly, we ensure your final document is correctly witnessed.
Enduring and Medical Powers of Attorney FAQs
Can a company director delegate their role to an attorney via a Power of Attorney?
No, a company director is not authorized to appoint an attorney to act as a director on their behalf.
However, this is sometimes confused with a company's capacity to appoint an attorney to represent the company. Companies can appoint attorneys.
Is it advisable to consult a healthcare professional when drafting a medical Power of Attorney?
If you are making a medical Power of Attorney because of concerns about your current health, then it is a good idea to consult a healthcare professional. Healthcare professionals can assist by explaining medical terminology, providing insights into various medical conditions, and discussing the advantages and disadvantages of different treatment options.
If your healthcare professional is prepared to witness your signing of the medical Power of Attorney, they can if required give evidence as to your decision-making capacity at the time of signing.
What happens if an attorney dies or loses decision-making capacity during their appointment?
In Victoria, if an attorney dies or becomes incapacitated during their appointment, their authority is automatically revoked and ineffective. In this situation, if an alternate attorney has been named in the Power of Attorney the alternate attorney can take on the role of the attorney they were designated to replace.
If no alternate attorney has been named, the position of attorney becomes vacant, leaving the person who made the power of attorney without legal representation. To prevent this situation, we always recommend appointing an alternate attorney.
Is there a maximum number of attorneys that can be appointed?
In theory, no for an enduring Power of Attorney, but we recommend one Power of Attorney to avoid conflict arising if there are multiple attorneys.
With a medical Power of Attorney, you can only appoint one attorney.
If I have multiple attorneys, can I revoke the power of just one of the attorneys?
Generally, the termination of one attorney does not affect the ability of the remaining attorneys. But it will depend on how a power of attorney was initially drafted.
If my spouse is my attorney and we divorce, does the Power of Attorney end automatically?
In short, the answer is no.
If you have appointed your spouse your attorney and later divorce, the Power of Attorney will still remain effective.
When is a power of attorney automatically terminated?
In Victoria, all Power of Attorney is automatically revoked where:
- The attorney declares bankruptcy.
- The attorney becomes insolvent under administration.
- The attorney dies or loses decision-making capacity.
- The principal dies. This is an important point as many people believe that when a person dies, they still have authority as an attorney to administer the estate of the person who granted the attorney.
- Where if the principal creates a new attorney.
What if family members or decision-makers disagree with the principal's wishes under their Power of Attorney?
In the absence of fraud or inappropriate behaviour, the Power of Attorney document will override the desires of family members.
Can I ensure my Power of Attorney is not abused?
Once a power of attorney has been given, it will be effective. Any decisions made will be valid in the absence of fraud or inappropriate behaviour by the Attorney. For this reason, it is essential to:
Regularly review your Power of Attorney, especially if your circumstances or health change or the circumstances or health of your attorney change.
