A Power of Attorney is a legal document that a person (known as the donor) gives to another (the donee). The power of attorney empowers the donee to act on the donor’s behalf.
Giving someone a power of attorney authorises them to take certain actions on your behalf. This includes operating your bank account as well as buying and selling your property.
As the donor, selecting a power of attorney does not mean that you lose total control over your affairs. The donee only gets to act on your behalf over things that you have authorised. You determine the extent of their power over your affairs.
Types of Power of Attorney
There are two types of power of attorney: general power of attorney and enduring power of attorney.
A general power of attorney typically lasts for a specified period. Where the period is not stipulated, a general power of attorney becomes invalid when the donor loses the mental capacity to make their own decisions or becomes legally incapacitated.
On the other hand, an enduring power of attorney lasts even after the donor becomes legally and mentally incapacitated. However, both the general and enduring power of attorneys become invalid after the donor dies.
When the donor dies, the executor named in their will takes over the responsibility of administering their estate.
When Can I Appoint a Power of Attorney?
You can appoint someone as your power of attorney as long as you are of sound mind and can understand the nature and effects of the document that you are making.
If you become legally incapacitated at the time of signing, the power of attorney will be seen as invalid.
Can a Power of Attorney Change a Will in Australia?
A Will is a legal document that comes into force after your death. A power of attorney, on the other hand, is a legal document that empowers a person to act on your behalf while you are alive. A power of attorney, whether enduring or general, ceases to be valid when you die, which meant that a power of attorney cannot change a Will in Australia.
Also, a Will deals with your wishes concerning your financial and personal life. But a power of attorney only empowers the donee to act on your behalf concerning your legal and financial affairs or other specific matters that you have authorised in the document.
Can I Use an Enduring Power of Attorney to Give My Wishes Concerning My Health?
A power of attorney does not give the donee authority to make decisions concerning the donor’s welfare or medical treatment. They can only act on legal and financial matters.
As such, if you, the donor, want to give directives about your welfare, personal life, or health, you will have to do so through Advance Care Directives.
With Advance Care Directives, you can give your wishes concerning your future health care and your preferences for your personal and non-legal or non-financial matters.
You can also make an Advance Care Directive appointing one or more persons who are to make decisions concerning your welfare and health where you become incapable of making those decisions yourself.
Other documents that you can use instead of an Advance Care Directive include Enduring Power of Guardianship, Medical Power of Attorney, and Anticipatory Direction. Using any of the documents above, you can make wishes about your well-being and personal care and they will be effective legally.
Who Can Sign a Power of Attorney?
Three persons have to sign the power of attorney when it is made. The donor and the donee must sign the power of attorney, along with a witness. All three have to be persons over the age of 18. They must have the capacity to understand the nature and effects of the power of attorney being made.
Any person that you choose to act as your attorney should be someone you can trust to look after your money and property. It may be a family member, friend, or professional, such as a financial or legal adviser.
Get a Power of Attorney in Australia
A Power of Attorney is a crucial legal document used to make financial and legal decisions. Because it is so important, you need the proper guidance when it comes to making a power of attorney and appointing an Attorney to make those decisions for you. This is where Gallagher Solicitors and Conveyancers come in.
We are a team of solicitors with experience in all matters relating to the preparation of the power of attorney and Wills. We can help you when it comes to making a Will, power of attorney, or the appointment of an enduring guardian.
As a team, we value relationships. As such, when working with our clients, we always strive to understand their needs and provide solutions that are tailored to each peculiar circumstance.
Our team is flexible in our methodology in dealing with client matters. We keep in touch with our clients in the most suitable way, whether that is via email, telephone, online video, or in person at our offices.
We can assist you with advice regarding the making of your PoA, the appointment of an enduring guardian, drafting wills, powers of attorney, or enduring guardian documents. We also provide services relating to administering an estate after a loved one has passed away, applying for probate or letters of administration, and contesting a Will.
You can call our office at (02) 6642 6944 to make an appointment or send us a message to discuss your will or estate matter.
