What is a power of attorney

What is a power of attorney? It is a formal document which empowers a person or persons, the "attorney(s)" to act in the name of and on behalf of the person giving the power, the "donor" or "principal". The power may be to act generally or in limited circumstances. It can also provide expressly that it is to continue to be effective even though the principal subsequently suffers unsoundness of mind. Why should I have a power of attorney? Every person should consider what would happen to their affairs if they were unable to manage them themselves, eg if they were unexpectedly taken ill. If that person required access to their bank accounts, dealings with insurance companies or anything of that nature, no-one would be able to do it unless they had that person's power of attorney. It is usually only given to persons who are able to be completely trusted eg spouses, family members or trusted friends. What is an enduring power of attorney? Unlike an ordinary power of attorney, an enduring power of attorney (sometimes called a "potected power of attorney") is a variation of the standard power of attorney which enables your attorney/s to continue to sign for you and make decisions for you if you lose mental capacity (for example, due to an accident, dementia or related condition or a mentally debilitating illness). It is given by persons, who are usually elderly or becoming steadily disabled, who wish to anticipate future mental incapacity. The power continues to have effect if the principal at some time after signature loses the capacity to understand through unsoundness of mind. Produced by Advocacy Tasmania Inc. July, 2001 ~1~ Clients Free Call Number 1800 005 131 PDF created with FinePrint pdfFactory trial version http://www.fineprint.com What happens to my affairs if I do not have an enduring power of attorney? If a person loses mental capacity and does not have an enduring power of attorney, his or her affairs will usually be managed by the Public Trustee, rather than members of the family or trusted friends. Are there dangers with having an enduring power of attorney? Yes. The enduring power of attorney is able to be used by the attorney/s immediately after the power of attorney form is signed. It does not depend upon you losing mental capacity for the attorney(s) to be able to act. Attorney(s) under an unlimited enduring power of attorney have the power to sign almost any documents of a financial nature (eg. bank transaction forms, land dealings, dealings with Government Departments such as Centrelink, access safety deposit boxes). For this reason it is important to only give the enduring power of attorney to people you can absolutely trust. Can I give an enduring power of attorney that does not come into effect until I lose reasoning capacity? Yes, but expert medical opinion will also be required to establish that the principal has lost capacity through unsoundness of mind. Can I appoint more than one attorney? Yes. Appointments of multiple attorneys may be made "jointly" or "jointly and severally". An appointment jointly means that all attorneys must act together for an act to be valid, but if one attorney dies or becomes incapable, the other attorney/s will not be able to continue to act. A joint and several appointment means that one attorney may act alone without the consent or knowledge of the other/s, but in this case, if something happens to one attorney, the other attorney/s can continue to act. Can I limit the dealings that an attorney can have on my behalf? Yes. Discuss with your solicitor at the time of making an enduring power of attorney about limiting the power of attorney to your needs and wishes. Produced by Advocacy Tasmania Inc. July, 2001 ~2~ Clients Free Call Number 1800 005 131 PDF created with FinePrint pdfFactory trial version http://www.fineprint.com How can a power of attorney be limited? There are four main ways: § § § § It can be limited to a particular area, such as Tasmania. It can be limited to specific acts and/or in respect of specific property. It can be limited to a particular time or event, such as 1 year or the period of absence of the principal outside Australia. It may also provide that the attorney is not to derive any benefit from acting as attorney. Is it difficult to get an enduring power of attorney prepared? No. A power of attorney does not take long to prepare, and does not cost much. It is however a very important and powerful document, and therefore should only be given to some-one you absolutely trust and they must agree and sign the document as well. A solicitor can prepare an enduring power of attorney, often at the time of making your will, in very little time. Does an enduring power of attorney need to be registered anywhere? Yes. Any act done under power are invalid in Tasmania until the power of attorney is registered by filing with the; Recorder of Titles Telephone: (03) 62 33 6375 Address: Level 8, 134 Macquarie Street Hobart, TAS 7000 The filing fee for lodging the document is $90.50 commencing June 27, 2001. How is a power of attorney revoked? A power of attorney can be revoked at any time by a donor that has the capacity to do so. There is no need to seek the advice of a solicitor. A simple written and witnessed request can be made to the Office of the Recorder of Titles. Telephone the staff at the office who will be helpful in providing the information you require. Produced by Advocacy Tasmania Inc. July, 2001 ~3~ Clients Free Call Number 1800 005 131 PDF created with FinePrint pdfFactory trial version http://www.fineprint.com The Public Trustee or a person who has, in the opinion of the Supreme Court of Tasmania, a proper interest in the matter may at any time during a period of mental incapacity of the donor of an enduring power of attorney, apply to the Court to have the attorney revoked or altered, or bring to account a principal who allegedly has not been dealing with a donor’s affairs appropriately. Is a power of attorney automatically revoked by making a new one? No. A revocation request must be made to the Office of the Recorder of Titles to revoke the registered document. The cost of revocation is $70.50 commencing 26th June, 2001. Once the document has been revoked, the new one can be lodged. And don't forget to tell your banks or other agencies that have dealt with the attorney. It is also possible for a Court or Tribunal to cancel a power of attorney, for instance if it not being used in your best interests. Should I as an intending principal consult a solicitor? Yes, the management of a person's property and affairs by an attorney is an important decision. It is important to consult a solicitor before the power of attorney is prepared, to avoid any risk and to ensure that the principal is fully aware of its terms and consequences. Safe custody Keep a copy of your power of attorney with your solicitor or in a safe place. To make a copy just photocopy it and write: "This is a true and complete copy of the original" on the photocopy. Sign it and date it. Some scenarios The day before you're going away for a holiday, a developer makes an offer "too good to refuse" for your house. The contract of sale must be signed, but you will be sailing down the Glorious Tamar River hunting wild starfish. Not wanting to cut short your fabulous Northern holiday, what can you do? The answer is simple: sign a limited power of attorney and authorise your attorney to sign the contract for you. After cruising the crisp clear waters of the Tamar River, you decide to tackle the mountain of Ben Lomond. Alas, you fall and are unconscious for three weeks. A financial enduring power of attorney would enable your attorney - the person YOU have chosen - to make financial decisions for you during those three weeks. Produced by Advocacy Tasmania Inc. July, 2001 ~4~ Clients Free Call Number 1800 005 131 PDF created with FinePrint pdfFactory trial version http://www.fineprint.com You are entering a nursing home and wish your daughter to pay the accounts to the home as well as handle your other financial matters. You sign a general power of attorney. Contacts The Guardianship and Administration Board Telephone: Address: (03) 6233 3085 99 Bathurst Street Hobart, TAS, 7000 The Office of the Public Guardian Telephone: Address: (03) 6233 7608 99 Bathurst Street Hobart, TAS, 7000 The Recorder of Titles Telephone: Address: (03) 62 33 6375 Level 8, 134 Macquarie Street Hobart, TAS 7000 The Public Trustee Telephone: Address: Free Call: 1800 068 784 116 Murray Street Hobart, TAS, 7000 Relevant legislation Powers of Attorney Act 2000 (Tas) Guardian and Administration Act 1995 (Tas) Power of attorney forms Following is a sample selection of power of attorney forms taken from the Powers of Attorney Act 2000 however, it is still advisable to seek legal advice when deciding on whether a power of attorney will suit your needs, and to how best draft the document to best reflect your needs. Produced by Advocacy Tasmania Inc. July, 2001 ~5~ Clients Free Call Number 1800 005 131 PDF created with FinePrint pdfFactory trial version http://www.fineprint.com Produced by Advocacy Tasmania Inc. July, 2001 ~6~ Clients Free Call Number 1800 005 131 PDF created with FinePrint pdfFactory trial version http://www.fineprint.com Produced by Advocacy Tasmania Inc. July, 2001 ~7~ Clients Free Call Number 1800 005 131 PDF created with FinePrint pdfFactory trial version http://www.fineprint.com Produced by Advocacy Tasmania Inc. July, 2001 ~8~ Clients Free Call Number 1800 005 131 PDF created with FinePrint pdfFactory trial version http://www.fineprint.com Produced by Advocacy Tasmania Inc. July, 2001 ~9~ Clients Free Call Number 1800 005 131 PDF created with FinePrint pdfFactory trial version http://www.fineprint.com Produced by Advocacy Tasmania Inc. July, 2001 ~10~ Clients Free Call Number 1800 005 131 PDF created with FinePrint pdfFactory trial version http://www.fineprint.com Produced by Advocacy Tasmania Inc. July, 2001 ~11~ Clients Free Call Number 1800 005 131 PDF created with FinePrint pdfFactory trial version http://www.fineprint.com