Enduring Power of Attorney

Julie Woods
October 29, 2020
Information Sheets, Wills and Estate Planning

The thing about the future is, you can never know when or if something might happen that takes your independence away. Preparing you for temporary or permanent loss of capacity is an essential part of planning your future.

Appointing an Attorney under an Enduring Power of Attorney gives you peace of mind, that if, something happens which impacts your mental or physical capacity, you have the person you want and trust to handle your legal and financial affairs.

What is an Enduring Power of Attorney?

It is a legal document, in which you appoint an individual or individuals to act on your behalf (referred to as “Attorneys”). It relates to the management of part or all of your legal and financial affairs. The Power of Attorney is said to be enduring because it continues to operate even when you lose mental capacity. It is more important to ensure that all attorney/s attend to signing their appointment/s. It will not be operative until the appointment is accepted.

Typical Duties that a Power of Attorney can carry out:

• Paying bills and managing your bank accounts;
• Signing documents on your behalf;
• Receiving income;
• Investment and property management;
• Purchasing property; and
• Incurring debts on your behalf.

Do I need an Enduring Power of Attorney?

We highly recommend that you make an Enduring Power of Attorney. The future is uncertain. There may come a time when you need someone to make decisions for you. If you do not have a power of attorney you may ultimately have no say over who is appointed to look after your affairs.

In the event that you don’t have an Enduring Power of Attorney and you need a financial manager, The NSW Civil and Administrative tribunal (“NCAT”) will have the power to appoint someone to look after your affairs. The process can be stressful, expensive and time consuming for your loved ones.

If you have an Enduring Power of Attorney in place when mental or physical capacity is lost, your attorneys can deal with your affairs as you have instructed them to do so.

When does the Power of Attorney come into effect?

You can decide whether the power comes into effect on completion of the document or only when you lose capacity.

When should I make my Enduring Power of Attorney?

Once you have lost mental capacity you will not be able to make an enduring power of attorney. As long as you are over the age of 18, you can do this at any time.

Who can I appoint to be my Power of Attorney?

We suggest appointing someone you know will act in your best interests. This can be anyone over the age of 18. They also must be willing to be your attorney.

Can I set limitations or conditions on my Power of Attorney?

The great part about making your Enduring Power of Attorney is that you can include a list of limitations that you want your attorney to abide by. Our Solicitors can help you understand restrictions that you might want to put in place to protect your interests.

Generally speaking, an Attorney must always act in your best interests, keep proper records and keep their property and finances separate to yours.

What happens when my attorney does the wrong thing ?

The appointment creates a very important legal relationship between you and your attorney. If your attorney breaches his or her obligations, they may be liable for civil or criminal penalty.

Can I add my medical decisions to my Power of Attorney?

You will need to create another estate planning document, called “Appointment of Enduring Guardian”. See our next blog for more information on this!

If you are ready to take the next step in ensuring your future needs are looked after, contact our friendly team today. You can either book online or call our office on (02) 4050 0330 to make an appointment.