What is a Power of Attorney and should I have one?
One simple analogy is that a Power of Attorney is like a “living will”, it allows you to empower another person or persons (called an “Attorney”) to legally take charge of your affairs whilst you are still living.
Appointing a Power of Attorney is useful in many day-to-day situations and is a precautionary safeguard.
There are many and varied circumstances, both Expected and Unexpected in which you may need to empower another person or persons to act on your behalf. Consider the following situations for example:
You are a sole Director Company or a Corporate Trustee
Appointing an attorney, enables your business to continue to operate in your absence or incapacity, that another person can manage your superannuation, receive or provide information to the Taxation Department and submit important documents on time.
You want someone else to be able to act
You’re a single parent, or have other responsibilities, and you wish to have the assurance that in an emergency, your financial and other affairs will not be “frozen”, that someone else can make decision as to your care, access your bank account to provide for your children’s immediate needs, pay the bills and otherwise keep your household or business running. You are expecting important documents or a contract to sign, but unavoidably you are going to be on an aeroplane for the next 24 hours and will not be able to sign when required. An attorney could sign on your behalf.
You are absent or unable to attend to matters yourself.
You are overseas/interstate and you decide to sell up your Australian/Victorian assets or an emergency requires you to access Australian funds in a hurry, and circumstances do not allow you to do this yourself – An attorney could do this for you.
You are injured or confined.
A motor vehicle accident or a hospital confinement or other physically incapacity may disrupt you managing your own affairs unless you have appointed an Attorney to act on your behalf.
You become ill
Illness may mean that you are unable or are going to be increasingly unable to go about your normal day to day business – an Attorney could act for you.
You become mentally incapacitated
Advancing age or certain health conditions or an accident may rob you of your ability determine matters for yourself, unless you have prepared in advance medical/health-care directions which detail the decisions that you want made by your Attorney if and when you are unable to do so for yourself.
The following are examples of health care decisions that you can make in advance that will be carried out by your attorney, should you become mentally incapacitated: What medical treatment you will and will not accept; Whether or not you want to be resuscitated by heroic means; Whether or not you consent to a termination of pregnancy; Whether or not you consent to removal of tissue while you are still alive for donation to someone else, or Which nursing facility you wish be admitted to if it becomes necessary.
Since we all have many responsibilities and accidents and illness can strike without warning it is sensible to appoint another person to legally act on your behalf for financial matters and/or personal matters including health care. This appointment can be for a specific purpose only or can be of a general and continuing nature, depending upon your needs.
What are my Options?
There are various options to choose from and the right choice or combination for you depends upon your individual needs.
The main types are:-
Enduring Powers of Attorney.
They are used if you want to appoint an attorney for personal matters (including health care) and/or financial matters (can be different attorney for each) and it is intended that the power continues even if you should subsequently lose mental capacity.
General Power of Attorney.
These are used if you want someone to be able to act on your behalf ONLY while you have full mental capacity and ONLY for financial matters. You would use a General Power of Attorney if you wanted to appoint an attorney for financial matters and for a limited time or specific purpose.
Please contact our office if you don’t have a current solicitor and we can recommend one.