A General Power of Attorney and Enduring Power of Attorney are very important documents that can provide peace of mind but what exactly do I need to consider?
A Power of Attorney is a document used by a person or company to appoint another person or company to make legally binding decisions on their behalf.
There are two types of power of attorney: General Power of Attorney and Enduring Power of Attorney. A General Power of Attorney ceases to have effect after you lose the mental capacity to make financial decisions, whereas an Enduring Power of Attorney will continue to have effect regardless of your mental capacity.
While the Power of Attorney is the actual legal document outlining who can make decisions on your behalf, the term ‘Attorney’ is used to describe the person you appoint to make those decisions. This document outlines the appointed ‘Attorney’s’ responsibilities and other considerations.
Your appointed Attorney must:
- act honestly and with care
- recognise your right to confidentiality
- consider your existing supportive relationships, values and culture
- apply the general principles under the Powers of Attorney Act 1998.
In relation to health care decisions, your Attorney must:
- ensure any decision made contributes to your health and well-being
- choose the least intrusive method of treatment where possible
- consider your views and wishes
- consider the advice of your doctor or other health care providers
- comply with the health care principles under the Powers of Attorney Act 1998.
In relation to financial matters, your Attorney must:
- keep records and accounts of dealings and transactions
- keep your property separate from their own (unless it is owned jointly)
- not give away your property, and make only reasonable gifts for birthday or Christmas presents or donations that you would normally make yourself.
You can give your Attorney the power to:
- decide on personal matters, such as where you live and who you have contact with
- agree to most health care issues, including medical and dental treatment, and withdrawing or withholding of life-sustaining measures
- control your finances, including collect your income, pay your bills and taxes, sell or rent your home, use your income to pay for your needs or invest your money.
- The power of your attorney ends with your death. If you retain capacity, you may revoke a general power of attorney at any time. You may revoke an enduring power of attorney at any time until you lose capacity.
- While not a common occurence, there may be instances of an Attorney acing improperly, such as spending assets unwisely or selling the family home inappropriately. In such a case, Power of Attorney can be revoked, and Attorneys can be investigated by the Public Guardian and their decision-making powers suspended if necessary.
It’s up to you
You can decide who, what and when a Power of Attorney is required. You should consider the following questions:
- Will you have more than one Attorney, and if so are they to act jointly or may they act individually?
- Do you give the Attorney full powers, specific (eg. to sell your home) or limited powers? If an Attorney is to benefit from a transaction, then the Attorney must be specifically authorised to benefit.
- When will the Power commence – immediately on signing, on a given date or only when you are incapacitated? Though it’s worth noting that if you choose the last option it will require medical evidence and may lead to unnecessary costs for doctor’s reports.
- Will you pay Attorney to act for you? If you appoint a Solicitor or an Accountant as your Attorney, they will require the insertion of a charging Clause in the document. A private individual is not permitted to charge for acting in the capacity as your Attorney.
- If you are incapacitated, will your Attorney get to decide where you live, when you go on holidays or what medical treatment you should receive?
- Can medical treatment be withheld on the say of a Attorney who may also be a beneficiary under your Will?
Whatever you decide upon, it is essential that your affairs are kept completely separate from your Attorney’s affairs. The Attorney must act in good faith and unless specifically authorised, must not benefit from the Power. You can also read more about Powers of Attorney and what it means to you here.
Every situation is unique and we have the expertise to help navigate any complexities that exist or could arise when it comes to Powers of Attorney.