Enduring Powers of Attorney

Your Will determines what happens after you have died. Your Enduring Power of Attorney provides for you during your lifetime by allowing someone you trust to make decisions as to your legal and financial affairs should you be unable to do that yourself. A further document called an Appointment of Enduring Guardian which can include Advance Care Directives, allows someone to make decisions as to your care, wellbeing and living arrangements if you become incapacitated and unable to make those decisions for yourself.

An Enduring Power of Attorney is a very powerful document. We will assist you to:

• understand how it can, and should, be used; and
• tailor it to suit your specific needs.

What is a Power of Attorney?

A Power of Attorney (POA) is a document where you give someone the power to do, on your behalf, anything that you may lawfully authorise them to do, in relation to your legal and financial affairs. The person you appoint is called an attorney.

This is very general and covers such things as signing cheques, withdrawing or depositing money in bank accounts, buying or selling shares, buying or selling real estate, entering into legal agreements and so on.

Importantly, a POA cannot be used to delegate to another person, your responsibility as a Director or other officer of a company, or generally, as a Trustee of a trust (including any role as executor of an estate). The one exception is in relation to superannuation funds and we can provide you with guidance on this if you need it.

What does it mean if it is an Enduring Power of Attorney?

An Enduring Power of Attorney is a Power of Attorney that continues to be effective even though after you have signed it, you might lose mental capacity (such as by being in a coma, suffering memory loss, dementia and so on).

The benefit of your Power of Attorney being enduring is that your attorney can continue to look after your legal and financial affairs, even though you may not be aware of what is happening.

Should I register my Power of Attorney?

A Power of Attorney essentially only needs to be registered when dealing with real estate (whether buying, selling, leasing, mortgaging or otherwise dealing with the title to property).

Where the Power of Attorney is only going to be used for dealing with, say bank accounts or shares, registration is generally not necessary.

Can a Power of Attorney be revoked?

A Power of Attorney can be revoked in three instances:

• Express revocation. This means that you may tell your attorney that the Power of Attorney is revoked and the POA will then be immediately revoked. The difficulty of using only a verbal communication to revoke it is being able to prove it at a later stage if a dispute arises. It is for this reason that we always recommend that revocation is in writing and of course, communicated to the attorney.
• Death. A Power of Attorney dies with you. From the date of death onwards, your financial affairs are governed principally by your Will.
• Overriding legislation. There have been many instances where the attorney has abused the authority under the Power of Attorney. Accordingly, legislation exists to permit the revocation of the Power of Attorney where that abuse or misuse of the authority occurs.