What is a Power of Attorney?
A Power of Attorney is a document by which authority is given by you to a person or persons, known as your Attorney/s, to do something on your behalf. The person appointing an Attorney is known as the “donor”. Any adult who has the mental capacity to do so can appoint an Attorney who can be any adult person or persons you know and trust or can be a company. Examples are your spouse, son, daughter, relative or friend. If you decide to appoint more than one Attorney, you can appoint them to act jointly or jointly and severally. If two or more Attorneys are appointed to act jointly, they are obliged to carry out their responsibilities together. If they are appointed to act jointly and severally, any one or more of them can act on your behalf at any given time.
What types of Power of Attorney are there?
The main types of Power of Attorney are:
- General Power of Attorney;
- Enduring Power of Attorney (Financial);
- Enduring Power of Attorney (Medical Treatment) and, although somewhat different to a Power of Attorney in some ways,
- an Enduring Power of Guardianship
General Powers of Attorney and Enduring Powers of Attorney can authorize your Attorney to do virtually anything which you can do, the main differences between the two being that:
- an Enduring Power of Attorney remains valid even if the donor were to become mentally incapacitated whereas a General Power of Attorney ceases to be valid when or if the donor becomes mentally incapacitated;
- an Enduring Power of Attorney can impose restrictions, limitations and conditions on what an attorney can do;
- a donor can specify the commencement date of commencement of an Enduring Power of Attorney.
A Medical Treatment Power of Attorney allows your Attorney to only make decisions for your medical treatment if you were to become unable to do so yourself.
Both you and your Attorney or Attorneys can revoke, or cancel, a Power of Attorney at any time although, it should be noted that an Enduring Power of Attorney is not revoked by the mental illness of the donor.
All Powers of Attorney cease to be valid on the death of the donor. It is at that time that a person’s Will comes into effect and the executor takes over.
Similar to a Power of Attorney is an Enduring Power of Guardianship which is a document in which you, as donor, appoint someone, the guardian, to make personal and lifestyle decisions for you such as where you live and the health care you receive if you are unable to do so for yourself.
Should I have one or more of these?
Powers of Attorney can be useful for a number of reasons, examples of which are as follows:
- overseas travel;
- in the event of accident, illness and, in the case of an Enduring Power of Attorney and an Enduring Power of Guardianship, incapacity;
- convenience generally.
You might consider one or more when you make your Will.