At any point in your life, you may find that you are unable to make personal or financial decisions, due to illness or a sudden accident. Powers of attorney are legal documents that allow you to choose who will make these decisions on your behalf if you are unable to make them yourself. Having Powers of Attorney in place will mean that your affairs will be taken care of by someone trustworthy without the need for anyone to apply to a tribunal to be appointed to administer your affairs. But is it necessary?
Types of Powers of Attorney
Powers of attorney can be enduring or non-enduring.
A general non-enduring power of attorney allows someone to act on your behalf in relation to your financial matters for a specified period of time. For example, if you own a business or investment that you need managed while you are travelling. The authority ends on a specific date or when the principal decides to revoke the power. A general non-enduring power of attorney does not have the power to make personal decisions and it is not a long-term arrangement, as it ceases if you lose decision making capacity.
On the other hand, for an enduring power of attorney, the power continues if and when you are unable to make decisions. The principal can limit the power to cover specific matters or can appoint the attorney to manage all matters, however, an enduring power of attorney cannot make medical treatment decisions for you unless they are also appointed to do so under a separate document.
Choosing a Power of Attorney
How do you choose who your attorney should be?
Giving someone the authority to make decisions on your behalf is an important decision, so you need to choose someone trustworthy. You should feel confident that whoever you choose will make the right decisions on your behalf. An attorney can be anyone over 18 years old, who isn’t bankrupt or insolvent. You also cannot assign a paid carer, health provider, or accommodation provider as your power of attorney.
What happens if you don’t have Power of Attorney
If you don’t appoint an enduring power of attorney and are unable to make decisions, your loved ones would have to decide who should make an application to a tribunal for an order that they be appointed to manage your affairs. If no one applies then a public advocate or a trustee company may be assigned on your behalf. This may mean that important personal and financial decisions are taken out of your hands and not addressed with your best interests at heart. It also means that your loved ones would have additional stress at what is likely to already be a very stressful time for them.
Creating a power of attorney can give you confidence over anything else. No matter what the future holds, you have peace of mind knowing that your personal and financial matters will be in safe hands.
We always recommend putting powers of attorney in place to ensure the best outcomes for you and your family, no matter your age or personal circumstances.
Get in touch with the team at APS Wills & Estates to learn more.
Written by APS Wills & Estates Principal Lawyer Phillip Lambourne.
Phil is a lawyer with over 35 years of experience in private practice and over 25 years of experience in the trusts and estate planning area. As Principal Lawyer with APS Wills & Estates, Phil provides advice and prepares documentation in the areas of Wills, Powers of Attorney, Probate and Estate Administration for clients across Australia. He also provides clients with conveyancing and property law, commercial law and state tax advice services.
When Phil isn’t working, he enjoys spending time with family, reading new books, and watching new shows with some good scotch whisky, or red wine and cheese. Phil also enjoys playing trombone in the Melbourne Lawyers Big Band!
Get in touch with Phil to discuss your will, power of attorney and estate plan.