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Powers of Attorney

In some circumstances it may be advantageous or necessary for you to authorise another person to make decisions, or to sign documents, on your behalf.

This authority is called power of attorney and the person you have appointed is called you attorney. The legal requirements for preparing a power of attorney in Australia are governed by State laws. 

Importantly, to appoint an Attorney you need to be able to understand what you are doing and what your various options are. If you do not have the capacity to understand this, the appointment will not be legally valid. 

Therefore it is important that you take the time to make a power of attorney while you have legal capacity, rather than leave the decision until it is too late. 

What if I lose the capacity to handle my financial affairs?

You are the only person who the right to make decisions about your assets. 

This means that if you are unable to handle your own financial affairs, you assets will be effectively frozen unless:
  • You have previously appointed a power of attorney
  • A person applies to the tribunal for an order allowing him or her to handle your finances. 
Deciding who to appoint

You need to make this decision for yourself. You should try to appoint someone who you trust and who both knows you well enough, and is objective enough, to make the decisions that are best for you. It is also useful if that person resides locally to you. 

With a General Power of Attorney and an Enduring Power of Attorney (Financial) you can appoint joint attorneys, ie two or more people to act as your attorney. If you want you can state that they must both agree on any decisions made. This can of course cause practical difficulties and you need to carefully consider the most appropriate appointment for your circumstances. 

Types of Power of Attorney

There are numerous types of powers of attorney that may be used in different circumstances. These include financial powers of attorney, medical powers of attorney and enduring powers of attorney. 

Our office can help you determine which type of power of attorney/s you require, the precise terms of power of attorney, and we can make sure that the power of attorney is properly witnessed to ensure that it is valid. 

For both an enduring power of attorney (Financial) and an enduring power of attorney (Medical) one of the witnesses to your signing must be a person authorised to take statutory declarations. The solicitors at our office are qualified for this role. 

What is a general power of attorney?

A general power of attorney is a document which appoints an attorney to act on your behalf in financial transactions. This document enables the attorney to sign any document that you may legally authorise an attorney to sign. 

It can be helpful for temporary absences, such as overseas travel or short hospitalisation, to ensure that your financial affairs are cared for. However, if you become incapable of providing your attorney with instructions (i.e you lose legal capacity) this document will automatically become invalid. 

What is an enduring power of attorney (Financial)?

An enduring power of attorney (financial) is similar to a general power of attorney however it continues to apply even when you are no longer capable of making decisions yourself, or providing you attorney with instructions. 

This can be useful to cover future permanent problems such as mental or physical incapacity. In that event, you attorney will become you financial 'guardian' and conduct your financial affairs on your behalf. 

It is important to remember that an enduring power of attorney is legally effective from the moment that you sign it, unless restricted by you. This means that the signature of your attorney is accepted by all organisations on presentations of the power of attorney. This is the case even if you are still capable of managing your own affairs and you do not wish your attorney to act on your behalf.

Our office can help your determine which restrictions are most appropriate to include in your enduring power of attorney ()financial  so that you can be comfortable that your assets are protected from any potential fraud or other inappropriate conduct by your attorney. 

What is an enduring power of attorney (Medical)?

In a medical emergency, doctors do not general need to get consent for your treatment. In a non-emergency situation, doctors are required to obtain consent prior to providing any medical treatment. 

An 'enduring power of attorney (medical treatment)' will allow you to appoint someone to make medical decisions when you are no longer capable of making such decisions personally. You may appoint anyone you like. 

It is important to note that an enduring power of attorney (medical treatment) does no permit your attorney to refuse you reasonable medical procedures for the relief of pain, suffering and discomfort or the reasonable provisions of food and water. Although your attorney can refuse other forms of treatment. It is also important to note that you cannot appoint joint medical attorneys. 

Enduring Power of Guardianship

By appointing an enduring power of guardianship you appoint someone to make lifestyle decisions for you, such as where you will live in the event of you losing capacity to make those decisions yourself. This document can be useful, particularly if you are concerned about whether or not you may reside in a nursing home or hostel in the future. 

Questions?

We hope this answers some of the question you may have about what we can do for you. If you do have a question which has not been answered here, please contact one of our friendly staff who will be more than happy to assist you on (03) 5440 2900 or alternatively email on info@osjlaw.com.au.
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