Groom & Lavers legal services: Power of Attorney  

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 affairs may be handled by someone close to you, for example, your spouse.

Nevertheless, you should safeguard your affairs now by talking to us 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 your 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 your death, a Power of Attorney operates during your life.

Types of Powers of Attorney  ^ Top

A Power of Attorney can be:

• a General Power of Attorney, or
• an Enduring Power of Attorney

“General Power of Attorney”   ^ Top

A General Power of Attorney is usually used in a business context by a corporation or an individual. It can authorize 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 an Enduring Power of Attorney, you may give your attorney the power to deal with all or any part of your financial and health affairs.

An Enduring Power of Attorney for financial matters comes into effect immediately it is signed or at your option on the date or event (e.g., 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 affairs, your Enduring Power of Attorney comes into effect whenever you suffer loss or capacity.

Appointing an attorney   ^ Top

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 an Enduring Power of Attorney must not enter into 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   ^ Top

Speak with us 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.

We 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   ^ Top

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 your attorney dies or loses decision-making capacity
• if your attorney becomes unqualified, e.g., 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. We will advise you on the procedures you should follow.

Advance Health Directive   ^ Top

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 decision-making capacity.

When making your Enduring Power of Attorney, speak to us about making an Advance Health Directive. Before entering into a Health Directive you must seek your doctor's advice and help to complete the document.

Making an Enduring Power of Attorney   ^ Top

Certain legal requirements must be followed to ensure the validity of an Enduring Power of Attorney.

Ask us about the costs involved in preparing your Enduring Power of Attorney.