A power of attorney is a legal document giving one person the power to act for another person. The agent can have broad legal authority or limited authority to make legal decisions about another person’s property and finance. The power of attorney is frequently used in the event of a person’s illness or disability, or when the person can’t be present to sign necessary legal documents for financial transactions. It will be of no effect once the person dies.
People can lose capacity for decision making for reasons such as intellectual or psychiatric disability, acquired brain injury, dementia or temporary illness such as delirium.
Who should make an Enduring Power of Attorney?
Everybody over 18 years of age – Losing capacity does not just happen to people who are ageing. A loss of capacity can happen at anytime in a person’s life and this loss may be temporary or permanent. For example, you may be in a car accident and as a result be in a coma for a number of weeks. During the time you are in a coma, if you have a power of attorney, then your Attorney can make decisions you authorised on your behalf. Otherwise you risk your assets and bank accounts being frozen until you are no longer incapacitated.
What is an Attorney?
An Attorney is the person you nominate to manage your affairs. You can have more than one Attorney. An Attorney can be appointed to manage your financial matters and/or your personal and health matters. You can specify when your Attorney’s powers begin and you can also specify what powers they will have.
What does an Attorney for Financial Matters take care of?
An attorney appointed for financial matters can make financial decisions on your behalf. For example, this can include operating your bank accounts, selling or buying assets, make investment decisions or operating your business.
What does an Attorney for Personal and Health Matters take care of?
An Attorney for personal matters can attend to things such as where you will live, who you will live with and your recreational activities. An Attorney for health matters can attend to certain medical decisions, treatment options and medicines.
An Attorney is accountable
An Attorney is personally accountable for their actions. If your Attorney mismanages your affairs whether deliberately or by negligence; they can be held liable for their actions. This can include facing court proceedings to recover money and even criminal charges. The Adult Guardian has powers to investigate complaints if somebody with an Enduring Power of Attorney, for financial, health or personal matters is acting improperly.
What happens if you do not have a power of attorney and you are no longer capable of managing your own affairs?
The law requires the Public Trustee to assume management of your affairs and property. They charge a fee for doing so. If your family members want to change a decision of the Public Trustee, they have no grounds to do so. If you want your family members, who know you best, to make decisions about your future, then prepare a power of attorney.