Power of Attorney

WHAT IS A POWER OF ATTORNEY?

The Power of Attorney, is a document you can create, where you appoint one, or two, or more people, and provide them with the power to do anything you, lawfully can do.

This means, that they can sign documents on your behalf, can access your bank accounts, and do anything, you could do yourself. It goes without saying that you must absolutely trust the person/s you appoint.

This document is about authorising someone, you trust, to transact any business for you, if there are no restrictions, imposed by the appointment.
It deals with the financial side of your life, unlike the Appointment of an Enduring Guardian, which deals with health, and welfare.

Click to read more about Enduring Guardianship.

HOW IS IT USED?

There are several types of situations where it might be used:

You might be doing a deal, where documents have to be signed, and you are not available to sign, because you will be away, or just not around. So, you would appoint someone to do just that. The appointment will be just for that, and then it would terminate. You must ensure the appointment states it clearly.

You might be buying land or property, and will be away when documents need to be signed. Like the scenario above, you would create the appointment just for that. However, it must be registered, with the Department of Lands to be legally valid to transfer real property.

You might be incapacitated, or just, unable to get about, and you appoint someone to transact your business for you.

In the above situations, this involves the creation of a General Power of Attorney. The appointment, ceases, either, in accordance with the restrictions you impose, or if you lose mental capacity.

If you want someone to make financial decisions for you, because you are no longer able to, you need to create an Enduring Power of Attorney.

ENDURING POWER OF ATTORNEY

This is the document you should create as you get older. It is an appointment that will continue, even if you have suffered loss of mental capacity. It provides a tool for the people you trust to step in and make financial decisions for you.

If you don't have one, it means that the people you care about, will have to apply for an order, appointing them as your financial guardian. This application can involve a lot of unnecessary time, for them.

To be legally binding, it must be properly created and certified.

Click, to read the legal requirements of this document.

A FEW POINTS ON THE POWER OF ATTORNEY!

The Appointment of your Attorney can be terminated at any time, and should be in writing to the person appointed.
If it is Enduring, you can only terminate the Appointment if you are mentally competent.
You may register any Power of Attorney, but it only has to be registered, if you want to use it, to transfer land.
Unless it is irrevocable, the Appointment terminates on death. It should not be used after this happens.
The person you appoint, has a duty to you, and your affairs, and can be taken to Court, if they abuse that position.
If you appoint more than one person, then you must decide, whether they have to use it together, or can use it individually without the approval of the other/s.
You can insert any lawful restrictions, or additional powers you choose, when creating the document.
An Enduring Power of Attorney must be accepted by the person you nominate before it is legally enforceable.

You must direct in your document, for your Attorney, to provide gifts, and/or, financial support of your attorney, and/or, someone else, for living and medical expenses, when managing your financial affairs, otherwise your attorney, may not. Click to access a pro-forma Power of Attorney document.

The Power of Attorney is an important document and should not be created without proper attention to its significance. It is sometimes very helpful, to talk about it, with someone else.

Your family lawyer or solicitor has the expertise to assist you, and can provide an unbiased view on the best course of action, when choosing your Attorney.

Contact:

power of attorney, legal advice, wills, family lawyer, enduring power

Phone 02-4332 1055 Fax 02-4333 5144

email: legal@drakegroup.com.au

footer for Legal help page