DLS Updates – Top 6 Power of Attorney Questions

Top 6 Power of Attorney Questions

A Power of Attorney is a legal document that gives a trusted person the legal authority to act for you and to make legally binding decisions on your behalf. If you do not have a Power of Attorney, then you should contact us and find out more.

Below are 6 top questions dealing with Powers of Attorney.

Circumstances when a Power of Attorney can be particularly useful:

  • if you do not wish to continue managing the day to day demands of financial paperwork and record keeping;
  • as a safety net when travelling or to allow someone to handle your affairs in your absence;
  • to enable you to determine who will have the responsibility of looking after your financial affairs if you cannot do so yourself; or
  • once you have made a power of attorney, arrangements for management of your finances can be put in place quickly if you subsequently lose mental capacity.
Does the Attorney need to be a lawyer?

Note that the person appointed does not need to have legal qualifications - you can appoint anyone although you should give careful thought to the person appointed as you are providing them with considerable power.

An ideal attorney should:

  • have integrity;
  • be willing to act in that capacity;
  • have competence in areas of relevance;
  • be able to act in a business-like manner;
  • be able to spare the time necessary for the task;
  • be agreeable to respecting the confidentiality of the donor’s affairs; and
  • be impartial and have no known conflict of interest.
Are there different types of Powers of Attorney?

Yes, a General Power of Attorney which is:

  • only valid while you have legal capacity;
  • useful if you are going away for an extended period and you do not want the authority to continue should you lose legal capacity; and
  • usually drawn up for a specific purpose with specific or general powers.
And an Enduring Power of Attorney (EPA) which:

  • continues to be valid even if you lose legal capacity due to disability or illness;
  • empowers your attorney to make financial and property decisions (however, in some States, such as Victoria, your attorney can also make medical and lifestyle decisions);
  • may be activated when required or upon loss of legal capacity; and
  • allows your attorney to commence or to continue to manage your affairs even though you have become incapable of giving him or her instructions.
Is it better to have more than one attorney?

We recommend that you do have more than one attorney, or a substitute attorney if the appointed attorney cannot act or continue to act, as it gives you more flexibility.

You can also appoint attorneys to act “jointly” or “severally”.

Should I pay my attorney?

This is not necessary to give legal effect to the power and would normally only be considered if the attorney(s) is a professional person who is not related to you.

How do I know if the person has sufficient mental capacity to make a power of attorney?

There is no simple formula. If you have any doubt about a person’s capacity to make a power of attorney, you should discuss this with your lawyer.

Your lawyer may get in touch with a doctor and ask for a written opinion.

Conclusion

In our view, many clients do not recognise the possible benefits (and pitfalls) of powers of attorney.

The need of a power of attorney can be quite unexpected. In case of accident, sudden illness, planned or unexpected absence, or when you just can’t cope, you may need someone to manage your financial affairs. So, it doesn’t matter if you are old or young, in business or not, if you do a lot of travelling or not, there are many reasons to consider having a power of attorney now.

To find out more about Powers of Attorney and their benefits please contact us.