Powers of Attorney and Appointment of an Enduring Guardian

Published 20 Aug 2015
Louis Andreatta

If you lose capacity to manage your own affairs, (for example, as a result of a stroke or mental illness such as dementia) you may derive comfort from knowing that you have appointed a trusted friend or relative to make decisions and to act on your behalf when you lose capacity. Firstly, you should talk to the person you intend to appoint as your Attorney or your enduring Guardian to be sure they are willing and able to take on the responsibility.

Having determined to appoint a trusted friend as your Attorney or enduring Guardian, Maclarens Lawyers can prepare and explain the documents and arrange the necessary signatures and certificates that are required for the documents to have effect.

Power of Attorney

A Power of Attorney is the document you sign to appoint your trusted friend as your Attorney to act in your place in relation to the management of your financial affairs. The person you appoint as your Attorney can undertake any action that you can lawfully undertake, (even without consulting you) providing it is within the scope of the Power of Attorney. Consequently, it is important that you appoint someone you trust as your Attorney.

Once the Power of Attorney is signed, you can hold onto it until the need arises or alternatively it can be given to the Attorney. It will be necessary for the Attorney to produce the document to show that the Attorney has authority to act on your behalf.

Having appointed an Attorney, you can still carry out transactions while you retain the ability to do so such as selling property and attend to your banking.

A Power of Attorney can last for a set period of time or a Power of Attorney will continue as long as you want it to. You may cancel a Power of Attorney at any time if you have ability to make the decision to do so. A Power of Attorney ceases to have any effect when you die.

Unless the Power of Attorney is an Enduring Power of Attorney it ceases to operate if you lose the capacity to make decisions about your financial affairs.

It is a good idea to give a trusted friend a Power of Attorney to manage your financial affairs if you are going to be absent overseas for a protracted period of time.

Enduring Power of Attorney

An Enduring Power of Attorney is the way you appoint a person to manage your financial affairs even if you later lose capacity to make these decisions for yourself. However, you must be of sound mind at the time an Enduring Power of Attorney is made. It is possible for you to decide that the Enduring Power of Attorney only becomes active when you are unable to manage your financial affairs for yourself.

Your Attorney must sign the Enduring Power of Attorney to show that he or she consents to act. The Enduring Power of Attorney is not effective until such time as the Attorney signs the consent form which is part of the Enduring Power of Attorney.

An Attorney must be over 18 years of age.

You may appoint more than one person as your Attorney. If you do so, the Power of Attorney must state clearly whether the persons you have appointed as your Attorneys may act severally and alone or alternatively must act jointly.

Selling Real Estate through an Attorney

An Attorney can only sign a contract to buy or sell land on your behalf if the Power of Attorney is registered at the Department of Lands.

Can an Attorney benefit from you?

An Attorney cannot use your money for his or her own benefit unless the Power of Attorney form specifically allows the Attorney to do so.

Appointment of an Enduring Guardian

Like the appointment of an Enduring Power of Attorney, the person you appoint as your Enduring Guardian must sign an acceptance of the appointment which is part of the Enduring Guardian appointment document. You can appoint more than one Enduring Guardian.

Your Enduring Guardian is the person you appoint at a time when you have mental capacity to do so, to make decisions regarding your health wellbeing and lifestyle, in the event that you lose capacity to make such decisions for yourself.

The document appointing your Enduring Guardian can authorise your Enduring Guardian to make decisions about such things as where you may need to live or what medical treatment you should receive.

The document appointing your Enduring Guardian, may direct the Guardian to withhold or withdraw life-sustaining medical treatment. However you should note that Directives to withhold or withdraw life-sustaining medical treatment can raise difficult legal and ethical issues.

You should note that your Guardian is required to act in your best interests within the law and in accordance with the requirements of the Guardianship Act.

Maclarens Lawyers can provide you with comprehensive and expert advice regarding Powers of Attorney and the Appointment of an Enduring Guardian.

Maclarens Lawyers are ready to prepare and explain documents for Powers of Attorney and Appointment of Enduring Guardians and arrange for the necessary signatures and certificates.