Powers of Attorney – Do I Need One?

Powers of Attorney are just as important as a Will, if not more important, as they are used first in a person’s life cycle. You may be alive but not capable and so your chosen Attorney/s may make decisions for your finances and person as well as medical treatment decisions.

Enduring Power of Attorney (covers financial and personal matters)

Enduring Powers of Attorney are operative from when they are signed and cover:

• Financial matters
• Personal matters which are defined as any matter relating to the person’s lifestyle affairs and includes any legal matter that relates to the person’s lifestyle affairs such as where and with whom they live, who they associate with, if they are allowed to work or undertake training or education; and daily living issues such as dress and diet and healthcare matters.

Formalities

A person giving an Enduring Power of Attorney must have decision making capacity in relation to the making of that document.

The Duties of an Attorney

• To act honestly, diligently and on good faith;
• Exercise reasonable skill and care;
• Not use the position for profit unless authorised;
• Avoid acting when there is or may be a conflict of interest;
• Not to mix property other than jointly owned property; and
• Not to delegate.

Limitations on Attorney

An Attorney cannot:

• make or revoke a Will;
• make or revoke an Enduring Power of Attorney;
• vote on behalf of the person;
• consent or enter into a dissolution of Marriage for the person;
• manage the Estate of the person on their death (the person’s Executor appointed in their Will does this); and
• consent to an unlawful act.

Rules of who can and cannot be appointed

• A person over the age of 18 can be appointed:
• A person who is insolvent or under administration cannot be appointed.
• A person who has not been convicted of an offence involving dishonesty can be appointed..
• A Care Worker / Health Provider / Accommodation Provider for the person cannot be appointed.
• Attorneys may be appointed solely (as opposed to joint and several) or on a majority basis. If it is not stated then they are acting jointly.
• An alternate Attorney can only act if the initial Attorney dies, loses decision making capacity or is not willing or able to act.

When does Enduring Power of Attorney end?

• On the death of the Principal:
• On the death or loss of decision making capacity of an Attorney; or
• If the Attorney becomes insolvent, is convited of an offence or becomes a Care Worker / Accommodation Provider for the person.
• An Attorney can only resign when there is another Attorney appointed.

Appointment of Medical Treatment Decision Maker

Appointments of Medical Treatment Decision Makers are only operative when the person loses capacity:

They give the right to refuse medical treatment such as an operation or the administration of a drug or other like substance or medical procedure; but

They do not include the refusal of palliative care which is the provision of reasonable medical procedures for the relief of pain, suffering or discomfort or the reasonable provision of food and water.

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For more information on Powers of Attorney, Wills, and other testamentary documents contact our Wills & Estates team for advice and assistance. Email us if you would like us to contact you.