What is a power of attorney?
A power of attorney is a legal document that allows you to appoint someone, either an individual or an organisation, who can make financial and personal decisions for you (stepping into your shoes as a substitute decision maker) and support you to give effect to your decisions. The process involves you ('the principal') appointing someone else ('the attorney') to this role.
Why is a power of attorney necessary?
Managing and planning for your future is one of the most important decisions we are required to make. Powers of attorney are important in ensuring you are in control of your financial, legal, and personal affairs (such as health, medical treatment, and accommodation), which can be decided by an appointed attorney.
Powers of attorney are important at whatever stage in life you are at as at any time we can be adversely affected by accident, injury, or illness. In the event that you do not have a valid power of attorney, you leave yourself to not controlling who can (and should) make decisions on your behalf.
Here at Carroll and O'Dea Lawyers we are experienced and have the knowledge to prepare powers of attorney in a timely and cost effective manner.
Can anyone make a power of attorney?
You need to satisfy two elements in order to make a power of attorney:
- Be 18 years old or over.
- Have decision making 'capacity' to do so.
The issue of 'capacity' is important particularly for elderly individuals or those suffering from a decision-making disability
Who can be appointed as an attorney?
An attorney can in principle be anyone who is able to accept their appointment but it is important that you know and trust your attorney.
It should be noted that there can be more than one attorney appointed and if there is not an individual that you want to appoint as an attorney, arrangements can be made to appoint an independent body such as a Trustee Company, to manage financial matters.
What is a general power of attorney?
A general power of attorney appoints one or more people to make financial decisions on their behalf. Financial decisions include those related to an individual's financial or property affairs and this type of attorney is often used for a specific purpose and specified period of time.
An example of a general power of attorney is appointing someone to manage your financial affairs at home whilst you are overseas.
What is an enduring power of attorney?
An enduring power of attorney is a legal document that lets you appoint someone to make certain financial and personal decisions for you. The main difference between a general and enduring power of attorney is that an enduring power of attorney continues or endures once you have lost decision-making capacity.
An example of an enduring power of attorney is appointing someone to make decisions that relate to your welfare and care.
Powers of Attorney – medical planning and decisions
It should also be noted that the Medical Treatment Planning and Decisions Act 2016 (VIC) came into effect on 12 March 2018. One of the key consequences of this Act is that an individual can now appoint a medical treatment decision maker with authority to make medical treatment decisions and a medical enduring power of attorney is no longer required to do this.
Look out for our separate update on these amendments which will be circulated shortly.
The above information is, of course, provided as a general guide only and there are various obligations on both principals and attorneys. These requirements and obligations are outlined in the relevant Victorian legislation, including but not limited to the Powers of Attorney Act 2014 (VIC). It is important that you speak with a lawyer who understands the practicalities of these legislative requirements to ensure that your future is adequately taken care of.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.