What there is to know about Power of Attorney

We often hear stories about people faced with moral or religious dilemmas about turning off life support to allow someone they love to die with dignity. Happily, most of us are going to grow to an even older age than previous generations, but delayed death brings with it a whole host of issues relating to both our financial and medical wellbeing.

Situations arise in our daily lives where the ability to allow someone else to make decisions on our behalf is convenient and makes good sense. It is a good idea to be aware of the advantages and disadvantages of delegating Powers of Attorney.

Powers of Attorney allow people of your choice to make decisions on your behalf, and hopefully, in your best interests. Their decisions are often subject to conditions specified by you and by legislation. It is probably stating the obvious to suggest that you should think carefully about who you wish to entrust with your life and/or financial well-being.

There are other situations where you may wish for someone to make decisions on your behalf when you no longer have the mental capacity to do so. In these circumstances, it is generally more appropriate to give specific Powers of Attorney which are called Enduring Powers of Attorney. These Powers of Attorney continue regardless of mental incapacity, which would ordinarily terminate a Power of Attorney. I strongly recommend you include instructions to make these Enduring Powers of Attorney when you are making or reviewing your Wills.

The form in which these Powers are created and witnessed is quite specific and must be followed strictly in order for the Powers to be valid. The law also imposes clear responsibilities and obligations on the person you appoint, ensuring that they act honestly and in your best interests. There is also reasonably easy and inexpensive access to the judicial system or VCAT for anyone who believes an attorney is not acting properly in the exercise of their powers.

Finally, you may be interested to know that after granting any or all of these powers to someone, you may change your mind and revoke them while you have mental/legal capacity. If you are wanting to go down this track, I recommend you have both the Powers of Attorney and any Deed of Revocation prepared by a lawyer. There is an old maxim which applies equally to lawyers and non-lawyers alike; “he who acts for himself has a fool for a client”.

 

If you would like to know more about Powers of Attorney, contact us now on 9664 4700 or email Sarah at sarah.slattery@nevile.com.au for further information.