Powers of Attorney:-
What is a Power of Attorney?
A Power of Attorney is a legal document authorising another person, such as a trusted friend or relative, to act on your behalf in 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 infirmed 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 lifetime. NB A Power of Attorney, even an Enduring Power of Attorney ceases upon death, irrespective if there is a Will or not.
Types of Powers of Attorney
A Power of Attorney can be: a General Power of Attorney, or an Enduring Power of Attorney.
General Power of Attorney:-
A General Power of Attorney is usually used in a business context by a corporation or an individual. It can authorise 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, personal and health matters.
Your attorney can deal with your financial affairs at the same time as you, unless you specify otherwise. In other words, you are not giving up any of your rights; you are merely sharing them with your attorney.
Appointing an attorney
When appointing your Attorney, they be over the age of 18 years; must not be your health care provider, must not be bankrupt; or must not be a paid carer.
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
See Pearson and Associates Solicitors 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.
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.
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.
Certain legal requirements must be followed to ensure the validity of an Enduring Power of Attorney.
