Owen Hodge Lawyers specialise in all areas of Wills and estates, including Power of Attorney
There may come a time when you need to appoint someone to act on your behalf. In such situations, a Power of Attorney (also known as POA), is created. When appointed, Power of Attorneys can make decisions regarding your financial, medical or personal affairs. You may have discussed a POA with your Wills and estate lawyer while doing your estate planning.
Keep reading to learn more about what a POA involves, or get in contact with our experienced Wills and estate lawyers.
What Is A Power Of Attorney?
A Power of Attorney is a legal document giving the person you appoint the power to do anything in law that you can do, e.g: pay bills, buy and sell real estate or shares, open and operate bank accounts, enter into litigation, and enter into nursing home and hostel contracts. You can also appoint more than one POA and have them either act together or separately.
If the Power of Attorney is ‘general’ and not ‘enduring’, it will cease to operate if the person becomes of unsound mind.
What is an enduring Power of attorney?
An Enduring Power of Attorney is a power of attorney that remains effective even if the person making the appointment loses their mental capacity after they have appointed the attorney.
How to get Power of Attorney (NSW)
You can make a POA:
- Through a Public Trustee
- By hiring a Power of Attorney lawyer
- Using a do-it-yourself kit
To be able to make a POA, you must also have ‘full legal capacity’. This means you must understand:
- What you are signing
- The nature and extent of your estate
- That the POA will have authority to deal with your financial, medical and personal matters
Powers of Attorney Act 2003
The Powers of Attorney Act 2003 commenced on February 16, 2004 and the Act, with some exceptions, will only apply to Powers of Attorney created after that date.
In the past, the person granting the power was the only person required to sign the document. The new legislation however, requires both the person granting the power and the person nominated as enduring attorney to sign and accept the conditions outlined in the document.
It is important to note that the Enduring Power of Attorney instrument does not become operational until the nominated attorney has accepted the appointment and signed the document. This new requirement applies to Enduring Powers of Attorney and does not apply to ordinary Powers of Attorney.
The legislation also allows for some uniformity across Australia. The Act recognises Powers of Attorney made in other States and Territories.
The Act also gives the Guardianship Tribunal and the Administrative Appeals Tribunal a broader range of authority when dealing with matters such as:
- The capacity to make a Power of Attorney
- Breaches of the Trustee Act
What can a POA do and not do?
The power given can be limited to a specific purpose, e.g. operating a bank account or selling real estate, or be a general power that permits the Attorney to carry out any business you can lawfully carry out.
Additionally, in order to more specifically control an attorney’s action, the new Act states that a POA cannot authorise a gift of all or any of the principal’s property unless such authority is clearly outlined in the document. There are also provisions to protect beneficiaries against the possible disposal of testamentary gifts or assets by the attorney prior to the death of the person granting the power.
Talk to a Power of Attorney and Wills lawyer
If you need to appoint a POA or still have questions, please contact the specialist estate planning team at Owen Hodge Lawyers. You can also read through estate planning faq.
Further information about Wills and estates:
Frequently asked questions
This depends on whether it’s a general Power of Attorney or an Enduring Power of Attorney. A general POA is just for a specified period of time. It ceases when you die or if you become legally incapacitated.
An Enduring POA, however, enables someone to make decisions on your behalf if you have become incapacitated. It is valid until you die or if it is revoked.
Yes, they can be. However, when you appoint a Power of Attorney, they do not become an executor of a Will by default. These are two separate documents – the former only having legal effect during the principal’s lifetime, and the latter only after the principal has died.
Yes, a family member can be a POA. When you appoint a POA, you must ensure it’s someone you can trust.
Yes, you can appoint a POA on your own. However, it’s always recommended to contact a Power of Attorney lawyer to ensure all the documentation is correct.
A POA can be anybody you trust to manage your medical, personal and financial matters.