Estate LawPower of Attorney

Power of Attorney – What decisions can my attorney make?

By November 23, 2018 No Comments

Are you considering making a Power of Attorney but aren’t sure what powers you will be handing over or who to choose (and who not to choose)?

This post is intended to give you an understanding of what decisions your attorney can make on your behalf and also provide some tips on who you should choose to be your attorney.

What is a Power of Attorney?

 A Power of Attorney is a formal document giving another person the authority to make decisions for you.

There are two types of Power of Attorney:

  1. General Power of Attorney, which is used to appoint someone to make financial decisions on your behalf for a specific period or event, such as if you are going overseas.
  2. Enduring Power of Attorney, which is used to appoint someone to make personal and/or financial decisions on your behalf.

 If you would like more specific information on Enduring Power of Attorneys, please see our post “Enduring Power Of Attorney – Do You Need One?”.

Financial Decisions 

If your attorney has been appointed for financial matters, they are given the power to make decisions relating to your financial and property affairs. Such powers include:

– Paying your bills;

– Carrying on your business;

– Selling your house;

– Performing contracts that you have entered into;

– Continuing your investments; and

– Withdrawing money from and depositing money into your bank accounts.

For financial matters, you can choose whether your attorney’s power will come into effect immediately or upon a specific event, such as loss of capacity.

Personal Matters

Decisions relating to personal matters that your attorney can make include:

– Where you will live and who you will live with;

– Day-to-day things like what you will eat and wear;

– What health care you will receive;

– Whether you will undergo end of life treatment;

– Whether you will receive medical treatment if you become terminally ill;

– What education or training you will receive;

– Whether you will work and if so, where you will work; and

– Legal matters (not including matters that relate to your finances or property).

Powers for personal matters will only commence once you have lost capacity to make the decision for yourself.

An attorney can’t make decisions about special personal matters or special health matters.

 Special personal matters include:

– Changing your Will, Power of Attorney, or Advance Health Directive;

– Exercising your voting rights;

– Marriage; and

– Adoption.

Special health matters include:

– Sterilisation;

– Undergoing special medical research or experimental health care;

– Pregnancy termination; and

– Electroconvulsive therapy (don’t worry we also had to google what this was too!).

If you have specific wishes about your future health care, we recommend that you also consider making an Advance Health Directive. This document can assist your attorney to make the decision you would have wanted. It will also compel your attorney to make a decision about your health care, even if they don’t agree. So, if you have a strong view about treatment (or no treatment) in certain circumstances, then we recommend that you prepare an Advance Health Directive.

Can I include specific terms?

You can include special terms and instructions in your Power of Attorney, and you can also limit your attorney’s powers. For example, you might want to specify that your attorney is not permitted to invest in certain shares.

Who should I appoint?

You attorney must:

– be at least 18 years old;

– not be your paid carer (a person receiving a carer’s pension is not considered a paid carer);

– not be your health provider; and

– not be a service provider for a residential service where you are resident.

For financial decisions, consider someone who is responsible with their own money and understands financial matters. The person you appoint must not be bankrupt.

For personal health decisions, consider relatives or close friends who understand your personal wishes and health care needs.

Takeaway Points

Appointing someone as your attorney is a big decision and careful thought should be given to who you appoint and what powers they will be granted. It’s important to appoint someone that you trust will act in your best interests.

At Martens Legal an Enduring Power of Attorney is one of the documents we recommend as part of our client’s estate plan. Please see our earlier post regarding our estate plan process.

Would you like further information?

If you would like further information on Power of Attorneys, please contact the team at Martens Legal.

Please also visit our website to see our fees guide.

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