When planning your estate, we recommend that you consider how your legal, financial, and personal affairs might be managed for convenience, as you age, or if you are incapacitated. A power of attorney is a document that can help with this.
What is a power of attorney?
A power of attorney is a legal document made by a person (the principal) that authorises another person or persons (attorney/s) to make personal (including health) and/or financial decisions on your behalf.
Personal and health decisions relate to matters such as your care, welfare, support services, living arrangements, and medical treatment for both physical and mental conditions. Financial decisions relate to your property and financial affairs, for example, paying your bills, selling or renting your home, making investments, carrying on a business, or using your income to pay for your needs.
There are two types:
- a general power of attorney which ceases if you lose capacity
- an enduring power of attorney which will continue if you lose capacity
What is a general power of attorney?
A general power of attorney allows you to appoint an attorney to make decisions about your financial matters while you have capacity to make decisions about those matters yourself. A general power of attorney is usually made for a specific period or event, for example, you may appoint an attorney to pay your bills while you are travelling overseas.
A general power of attorney will end if you lose capacity to make decisions.
What is an enduring power of attorney?
An enduring power of attorney enables you to appoint someone you trust to make personal and/or financial decisions on your behalf. It is important to note that your attorney can only make health decisions on your behalf if you have lost legal capacity to make those decisions yourself.
When making an enduring power of attorney, you can choose when your attorney can begin to make financial decisions on your behalf. This may be immediately, if a specified event occurs, or when you no longer have capacity to make decisions yourself. If you lose capacity, the attorney’s authority to make decisions for you will continue.
What you need to know before making an enduring power of attorney
To make an enduring power of attorney you must be at least 18 years and have legal capacity to understand the document you are signing and the powers it provides.
You need to understand that:
- you may specify or limit the power you would like to give your attorney and when that power will begin
- once the attorney’s power begins, they will have full control over the exercise of their power, subject to any terms included in the enduring power of attorney
- the attorney’s power continues even if you lose capacity
- you may revoke the enduring power of attorney any time while you have legal capacity
- if you lose legal capacity and are unable to revoke the enduring power of attorney, you are effectively unable to oversee the use of your attorney’s power
The above points provide a basic overview only of powers of attorney and we recommend you seek legal advice from an experienced lawyer to ensure you understand your rights and responsibilities when preparing a power of attorney.
What should I consider when choosing my attorney?
Obviously, the most crucial factor when making this decision is to select someone you would trust ‘with your life’.
The person you choose as your attorney must:
- have capacity to make decisions they are appointed to make
- be 18 years or older
- not be your paid carer or have been your paid carer in the past three years
- not be a service provider for a residential service where you reside
- not be bankrupt or undergoing the process of bankruptcy (noting that this only applies if the attorney is being appointed for financial matters)
You can appoint more than one attorney in Brisbane and QLD, but no more than four if you require those attorneys to act jointly on all decisions.
If you appoint more than one attorney, you will need to decide whether they are to exercise their authority jointly, severally, by majority, successively or alternatively.
Choosing your attorneys and the specific powers each will have (if appointing more than one), requires important decisions to be made and can be complex. We can help you determine the type of power of attorney that is right for your circumstances in Brisbane, QLD, any restrictions you wish to include, and prepare the documents for you.