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We all face the possibility of being unable to manage our personal and financial affairs due to a sudden illness, severe accident or declining mental capacity.
If you lose your ability to make decisions and do not have an Enduring Power of Attorney, your financial affairs may be handled by a government department or institutional trustee for a fee. Your personal health matter may be handled by someone close to you, for example your spouse.
Nevertheless you should safeguard your affairs now by talking to John Harris Solicitors and making an Enduring Power of Attorney while you are in good health and are able to decide on who you want to be legally appointed to act on your behalf.
What is a Power of Attorney?
A Power of Attorney is a legal document authorizing another person, such as a trusted friend or relative, to act on your behalf to handle your affairs. This person is known as your ‘attorney’.
It is a convenient method of allowing someone to handle your affairs if you: go overseas; take an extended holiday; suffer poor health; or reach an age when you need greater assistance.
Knowing you have an attorney capable of dealing with you affairs when you are absent or infirm gives you peace of mind.
A Power of Attorney is just as important as a Will. While a Will operates on you death, a Power of Attorney operates during your life.
Types of Powers of Attorney
A Power of Attorney can be:
- A General Power of Attorney, or
- An Enduring Power of Attorney.
General Power of Attorney
A General Power of Attorney is usually used in a business context by a corporation or an individual. It can authorise your attorney to deal with your personal or financial affairs, or both, and comes into effect on the date you elect. It may limit the extent to which your attorney may deal with those matters.
A General Power of Attorney does not operate when you lose capacity to make decisions.
Enduring Power of Attorney
Under and Enduring Power of Attorney, you may give your attorney power to deal with all or any part of your financial, personal and health matters.
An Enduring Power of Attorney for financial matters comes into effect immediately it is signed or at your option on the date or event (for example, incapacity) you elect, and continues to operate when you lose capacity to make decisions.
Your attorney can deal with your financial affairs at the same time as you, unless you specify otherwise.
For personal and health matters, your Enduring Power of Attorney comes into effect whenever you suffer loss of capacity.
‘Loss of capacity’ has a special meaning under the Powers of Attorney Act 1998, ask John Harris Solicitors to explain it to you.
Appointing an attorney
Your appointed attorney must be over 18 years of age; must not be your health care provider (for example, your doctor); must not be bankrupt; or must not be a paid carer (receiving a carer’s pension does not stop a person from being an attorney). An attorney under and Enduring Power of Attorney must not enter in a conflict transaction.
It is important you choose someone you trust, who is capable of looking after your affairs. You may wish to appoint more than one attorney. Under the law, to appoint an attorney you must be able to understand fully what the appointment means.
Making an Enduring Power of Attorney
Speak with John Harris Solicitors about:
- Your choice of attorney and number of attorneys
- The scope of power given to your attorney
- Any additional clauses (conditions/requirements) you may wish to add to the standard form
- When you would like the Enduring Power of Attorney to commence.
John Harris Solicitors will arrange for the appropriate form to be signed and for its proper witnessing.
To be valid, your Enduring Power of Attorney must be in the approved form and comply with strict witnessing requirements.
Revoking an Enduring Power of Attorney
Your Enduring Power of Attorney is automatically revoked:
- On your death;
- When you marry, unless your new spouse is your existing attorney;
- When you divorce, if your attorney was your spouse;
- When you appoint a new attorney;
- If you attorney dies or loses decision-making capacity;
- If your attorney becomes unqualified, for example, bankrupt or a paid health care provider.
You can choose to revoke your Enduring Power of Attorney at any time providing you are capable of understanding what you are doing. John Harris Solicitors will advise you on the procedures you should follow.
Advance Health Directive
An Advance Health Directive is a document which allows you to give directions about your future health care should you lose the capacity to make decisions. It can include instructions to withdraw medical treatment designed to prolong life.
This does not mean euthanasia which is performing an act designed to cause death.
Your Advance Health Directive operates only during any period of loss of your capacity.
When making your Enduring Power of Attorney, speak to John Harris Solicitors about giving an Advance Health Directive. Before entering into a health directive you must seek your doctor’s advice and help to complete the document.
Your options in making an Enduring Power of Attorney
You can make your own Enduring Power of Attorney, but you do so at your own risk.
Certain legal requirements must be followed to ensure the validity of an Enduring Power of Attorney.
The Public Trustee and some trustee companies offer to make free of charge an Enduring Power of Attorney on the condition they are appointed your attorney. They then charge fees on transactions carried out on your behalf.
John Harris Solicitors will charge you a one-off fee for preparing the document and you can choose your attorney. Unless you appoint a professional person as your attorney, your attorney will not usually charge fees for acting as your attorney.
Ask John Harris Solicitors about the costs involved in preparing your Enduring Power of Attorney.
Your attorney for a financial matter may enter into a conflict transaction (i.e. a conflict arises between your attorney’s duty to you and their own interests) only if you authorise such a transaction. Speak to John Harris Solicitors if this occurs.
Where to now?
The best way to get the answers you need is to speak to a solicitor, so call us on +61 7 3839 1500.
Organise an initial consultation
A face-to-face consultation gives you the opportunity to discuss your legal issues with professionals who deal with and resolve these issues on a daily basis. We provide a free half an hour initial consultation. It gives you a chance to ask any questions you may have and for a member of our team to gain background and provide an insight into the options available to you.
For more information please call us on +61 7 3839 1500 or send us an e-mail at info@jhsolicitors.com.au. We are here to help.
Please call us to find out how we can help you.