Enduring Power of Attorney | General Power of Attorney | Wills and Estate Planning
A general Power of Attorney (POA) is a document which enables the person (or persons) of your choice to act in your place in relation to specific matters, if you become unable to act yourself.
A POA provides authority to your Attorney (the person you choose to act on your behalf) in relation to legal and financial matters. This includes actions like signing documents, paying bills and rent, doing your banking etc. Your Attorney has the legal power to look after your affairs.
A General Power of Attorney is only valid while you are of sound mind and becomes void if you become ‘unsound of mind’ or you die, whichever occurs first.
An Enduring Power of Attorney is a legal document granting a person the power to make important decisions for you. These include financial and legal decisions, matters related to property and also personal decisions.
It’s a crucial part of planning for the unknown. Many people think that an Enduring Power of Attorney is really only for the elderly. However, it is an important document for all adults as we never know when we may become incapacitated (for example due to a sudden terminal illness or an accident) and be unable to make financial and personal decisions ourselves.
Most people appoint someone they trust implicitly; such as a spouse, family member or close friend. You should have a lawyer to prepare this document for you to ensure it is valid and accurately reflects your wishes.
An Enduring Power of Attorney continues to be valid, even if you become of ‘unsound mind’. It enables your Attorney to continue to manage your assets and financial affairs for you when you can’t do it for yourself.
An Enduring Power of Attorney ceases when you die.
An Attorney is a person (or persons) who you appoint to manage your assets and finances and also make personal decisions on your behalf.
The Attorney can assist you to make decisions whilst you are still capable of doing so or in the event you are no longer capable of managing your assets and finances, the Attorney can make decisions on your behalf.
Anyone who is over the age of 18 can act as an Attorney. Preferably, a spouse, child, children, near relative or a significant person in your life that you trust would be the most appropriate Attorney.
You can’t grant a Power of Attorney if you don’t have the legal capacity to understand the Power of Attorney document itself and make decisions.
For example, a person who has suffered an irreversible problem, such as dementia or brain damage, may be unable to give Power of Attorney. If you are unconscious following road trauma, you are unable to grant a Power of Attorney. The document can only be done whilst you have decision making capacity.
If you know a person who, due to age or health problems, may be at risk of suffering dementia, a stroke or any other serious illness, it might be a good idea to talk to them about giving Power of Attorney, before it’s too late.
If you don’t have an Enduring Power of Attorney and become of unsound mind, no person automatically has the right to manage your assets. Not even your husband or wife.
So, what can you do?
If you don’t appoint anyone, and are unable to make a decision when it needs to be made, the Victorian Civil and Administrative Tribunal (VCAT) can appoint someone to make the decision, such as the Public Advocate or a trustee company.
The applicant would apply to become your financial manager.
Yes, there are many options here.
For example, you may want a Power of Attorney to come into effect from a certain date, or from the date you sign it. You may wish the Power of Attorney to come into operation only when you are overseas, or only if you suffer a loss of legal capacity.
Also, you can set a fixed time when the Power of Attorney is to cease. Such as when you return from an overseas holiday, or when you recover from illness.
You can even appoint more than one person to act as your Attorneys, either independently or together. Plus, you can choose another person as an alternate, should your preferred person be unable to take on the task.
Your Enduring Power of Attorney ends when you die, or when you revoke it, or when it is terminated by a court or VCAT.
Yes, you can change your mind after appointing an Attorney providing you still have capacity to revoke the document or make a new one.
Your lawyer can advise you of safeguards which can be built into your Power of Attorney document.
For example, you may decide that your Attorney needs to report to your Accountant at set intervals or you appoint more than one attorney so each can keep check on the other.
Additionally, the Power of Attorney may be conditional upon your doctor providing a medical certificate to state that you have suffered a loss of capacity through unsoundness of mind.
There are many ways to draft a Power of Attorney. You should discuss your options with us and we’ll prepare the document based on your requirements.
We charge fixed fees for standard Wills, Powers of Attorney and Appointment of Medical Treatment Decision Maker documents:
$440 (incl GST)
Enduring Power of Attorney
$330 (incl GST)
Appointment of Medical Treatment Decision Maker
$385 (incl GST)
Life Planning Package
Standard Will, Enduring Power of Attorney and Appointment of Medical Decision Maker – $1,000 (incl GST).
The above fixed fees are for standard documents only and include the initial consultation, preparation of the document, witnessing (or instructions for signing), sending of Statements of Acceptance to appointed Attorneys and Medical Decision Makers and provision of copies of final documents.
If your situation is more complex, we will provide you with an estimate of fees before commencing work.
Likewise, if you require more than one document and would prefer to get all your life planning and estate planning documents out of the way at once, we can tailor a fixed fee package for your situation.
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PO Box 343, Black Rock 3193