PHILLIPS & WILKINS FACT SHEET: Powers of Attorney
What is a power of attorney? A power of attorney authorises one or more persons to do anything on behalf of the donor that the donor can lawfully authorise an attorney to do. There are 4 types of powers of attorney. 1. General Power of Attorney. This is used to appoint someone for a specific period of time to make financial or legal decisions for you. If you lose legal capacity then the general power of attorney is no longer valid. This type of power of attorney is used if you are going overseas or away for a period of time and require someone to look after your affairs whilst you are away. 2. Enduring power of attorney (financial). This is used to appoint someone to look after your financial affairs in case you lose capacity. 3. Enduring power of attorney (medical treatment). This is used to appoint someone to make medical decision for you in case you lose capacity. 4. Enduring power of guardianship. This is used to appoint someone to make lifestyle decisions such as where you will live if you lose capacity. Why make a power of attorney? The only way to chose the person who makes decisions for you in case you lose capacity is by appointing a power of attorney. By making a power of attorney you have the control to chose who makes decisions on your behalf and you have the power to outline any restrictions, limitations, or directions you would like to give them. Making a power of attorney is recommended for everyone who is over 18 years and has capacity. What is capacity? Capacity is being able to understand the nature and effect of the power of attorney. The donor must understand the following: When the power is exercisable. That conditions, limitations and instructions can be specified. That the attorney has the same power as the donor. That the donor may revoke the power of attorney if they have capacity. That the power continues if the donor loses capacity.
Who can be appointed? An attorney can be a single person or two or more people who are over the age of 18. If there are two or more people appointed then those people can act jointly or jointly and severally. If they are to act jointly then all must agree and all must sign any documents signed on behalf of the donor.
2 What are the duties and responsibilities of an Attorney? To act within the scope of the power of attorney paying attention to any limitations, instructions and restrictions. To avoid a conflict of interest. To keep the donor’s money separate from their own. To keep up to date records and receipts. Keep a record of income and expenditure and an up to date list of assets and liabilities. To hold the donor’s money as trustee for the donor. To be confidential. To perform the above duties personally and not delegate the responsibilities to others. When signing a document to make a note it is signed under the enduring power of attorney.
What powers do attorneys have? Generally attorneys have all the powers that the donor has subject to the following limitations: An attorney can not make a will for the donor. An attorney can not exercise personal rights of the donor, for example an attorney can not vote at an election for the donor. An attorney can not swear an affidavit. An attorney can not accept or make appointments of a personal nature, for example the attorney can not accept an appointment as a director of a company on behalf of the donor. An attorney can not set up a statutory authority or apply for a licence for the donor. An attorney can not give a gift of the donor’s property to someone.
Attorneys appointed under a medical power of attorney can make decisions about medical procedures subject to the following limitations: An attorney can refuse medical treatment if the treatment would cause unreasonable distress or the attorney reasonably believes that the donor would consider the treatment unwarranted. An attorney can not agree to medical procedures likely to lead to infertility, termination of a pregnancy, or removal of tissue for transplant. An attorney can not refuse medical treatment to alleviate pain or suffering when a person is dying.
When does the attorney act? The power of attorney often begins immediately. If this is the case then while the donor still has capacity the attorney exercises their powers at the direction of the donor. If the donor loses capacity then the attorney acts on behalf of the donor taking into account the duties and responsibilities outlined above. Losing capacity means that the donor does not know what their obligations are, do not understand the consequences of their actions, and do not make reasonable choices.
When does the power of attorney end? The donor can revoke the appointment of an attorney as long as they have capacity. A revocation should be in writing and witnessed. Otherwise the power ends if the donor dies. For more information or to obtain a power of attorney please do not hesitate to contact us. Phillips & Wilkins Solicitors 823 High Street, THORNBURY Ph: 9480 1155 Fax: 9416 9685 www.philwil.com.au