Powers of Attorney
A Power of Attorney is a document which allows another person to step into your shoes and act on your behalf. There are different types of Powers of Attorney in Victoria and New South Wales.
VICTORIA
Enduring Power of Attorney (Medical Treatment)
This Power of Attorney will allow another person to make medical decisions on your behalf. These decisions could relate to medication and consenting to medical procedures. Your Medical Power of Attorney may also refuse to consent to treatment if they feel that it would cause you unreasonable distress or they believe the treatment to be unwarranted. Although you execute your Power of Attorney when you are able to make medical decisions for yourself it will only come into force when you lose the ability to make decisions. As this is an enduring Power of Attorney, it will continue when you are unable to make decisions for yourself.
You are able to appoint any person over 18 years of age to act as your medical power of attorney and they must accept the appointment in writing. You are also able to appoint an alternative agent who can only make decisions and act as the Power of Attorney when your primary agent is unable to.
You are able to revoke the power at any time as long as you still have capacity to do so. This can be done by informing the agent that their power is withdrawn or by destroying the enduring Power of Attorney document. It is also important where you wish to revoke the Power of Attorney to complete a Revocation of Power of Attorney (Medical), which we are able to assist you with.
Enduring Power of Attorney (Financial)
This Power of Attorney allows your Attorney to stand in your shoes and make financial and legal decisions on your behalf. This Power of Attorney cannot be used to make medical or lifestyle decisions.
Your Attorney may be able to deal with the following on your behalf:
• Banking;
• Paying your bills;
• Dealing with Centrelink, Tax Office and various other Governmental organisations.
You can appoint any person over 18 years of age to act as your attorney and they must accept this appointment in writing. You can choose to appoint more than one attorney and they can be appointed in two different ways:
• Jointly: this means that the attorneys must act together on all decisions made;
• Jointly and severally: this means that the attorneys can make decisions together or independently.
As this is an enduring Power of Attorney, it will continue when you are unable to make decisions for yourself.
You are able to revoke the power at any time as long as you still have capacity to do so. This can be done by informing the agent that their power is withdrawn or by destroying the enduring power of attorney document. It is also important where you wish to revoke the Power of Attorney to complete a Revocation of Power of Attorney (Financial), which we are able to assist you with.
General Power of Attorney
This Power of Attorney is similar to the Enduring Power of Attorney (Financial). It will give your Attorney the same decision making powers as the above Power of Attorney, but it is for a limited time or purpose.
For example if you are going overseas you may want someone to have the ability to handle your affairs while you are away, however you do not necessarily want this to continue when you return. You are able to appoint this form of attorney for the limited period of time that you are overseas, after which the attorney will lapse and will not longer be of effect.
You should also follow the procedure for revoking the Power of Attorney by informing the agent that their power is withdrawn or by destroying the enduring power of attorney document. It may also be important where you wish to revoke the Power of Attorney to complete a Revocation of Power of Attorney.
Enduring Power of Guardianship
When you appoint a Guardian under an Enduring Power of Guardianship you give them broad and far reaching powers. Under an Enduring Power of Guardianship your guardian can decide matters such as where you live and who can visit you. They can also make long term decisions relating to your ongoing health care.
You can appoint any person over 18 years of age to be your guardian. However the guardian cannot be someone who at the time of appointment provides you with professional care, treatment or accommodation. You can appoint a second person to act as your alternate guardian, this person will only be able to make decisions on your behalf when the guardian is unable to.
As this is an enduring power of guardianship it will continue when you are unable to make decisions for yourself. You are able to revoke the appointment at any time as long as you still have capacity to do so. This can be done by informing the agent that their power is withdrawn or by destroying the enduring power of guardianship document. It is also important where you wish to revoke the guardianship to complete a Revocation of appointment of enduring guardian.
NEW SOUTH WALES
In New South Wales two different forms of Power of Attorney can be made, a General Power of Attorney and an Enduring Power of Attorney.
General Power of Attorney
This form of Power of Attorney will terminate if the principle loses capacity. An example of where a General Power of Attorney may be used is where you are going overseas for a short period of time, and will revoke the power when you return.
Enduring Power of Attorney
An Enduring Power of Attorney continues to operate after the principle loses capacity and the Power of Attorney document will provide this. The attorney must sign the power of attorney document to show that they consent to act before the Power of Attorney will come into operation. The principle's signature will need to be witnesses by a prescribed witness, such as a lawyer, with a certification that the effect of the Power of Attorney has been explained to the principle, we will provide this instruction in our meeting with you.
You can appoint any person over 18 years of age to act as your attorney. The appointment must be accepted in writing. You can choose to appoint more than one attorney and they can be appointed in two different ways:
• Jointly: this means that the attorneys must act together on all decisions made;
• Jointly and severally: this means that the attorneys can make decisions together or independently.
As this is an enduring Power of Attorney, it will continue when you are unable to make decisions for yourself, or is revoked when you still have capacity to do so.
You can place limits and conditions on your attorney's authority. A New South Wales Power of Attorney only authorises the attorney to act in relation to financial matters. You cannot make a Power of Attorney for lifestyle or medical matters in New South Wales. You will need to appoint an enduring guardian if you would like someone to act on your behalf in relation to medical or lifestyle decisions. If you would like further information on this matter please contact our office.
Powers of Attorney - Frequently Asked Questions:
Does the Power of Attorney have to start right away?
No. We can draft the Power of Attorney so that it only begins on the happening of a certain event. This is usually when you loose capacity. In this instance we may also require that your General Practitioner provide us with a medical certificate certifying that you no longer have the capacity to make decisions for yourself.
What is capacity?
Capacity means that you are able to understand, retain, believe, evaluate and weigh the information which is relevant to appointing an agent/attorney. The relevant information includes the powers of the agent, that the power will continue if you lose the ability to make decisions, that you can revoke the powers while you have capacity and that once you lose capacity you will not be able to supervise the decisions.
Who should I choose to be my Power of Attorney?
Your Power of Attorney should be someone who you trust implicitly. Your attorney's job is to act in your best interests, make decisions in accordance with your wishes. It is important that you discuss medical, financial and guardianship matters with your attorney to ensure that they have a clear idea about the decisions you would have made if you had been able to.
When does a Power of Attorney stop?
A Power of Attorney will cease if you choose to revoke it. You must tell your previous attorney that the power is withdrawn and destroy the original and copies. You should also complete a Revocation of Power of Attorney, which we can assist you with.
I live on the river - Do I need Powers of Attorney in both States?
This will depend on your own personal circumstances and is assessed by our Estate Planning team on an individual basis. If you would like further information in this regard please contact our office.
