POWER OF ATTORNEY
A Power of Attorney allows you to grant someone the ability to manage your legal and financial affairs while you are alive (for instance if you lose capacity or you are overseas).
A Power of Attorney may:
- Buy and sell real estate on your behalf
- Buy and sell shares and other assets for you
- Operate your bank accounts
- Spend money on your behalf
What A Power of Attorney may not do:
- Vote for the principal
- Make decisions about the care or wellbeing of children
- Make or revoke a will or power of attorney
- Manage the estate of the principal after their death
You may set limitations on your attorney and an attorney must always act in your best interests.
A Power of Attorney must be registered if it intended to enable the principal to sell or transfer land or property,
When will a Power of Attorney cease to operate?
- On your death
- If you revoke the power of attorney whilst you still have capacity
- If the attorney advises in writing resignation
What happens if I lose capacity and I don’t have Power of Attorney?
Family members may be able to informally make some decisions for you, particularly about lifestyle decisions. However most financial decisions will need a power of attorney if you have lost capacity to manage your own finances.
Without a power of attorney your family may have difficulty accessing your bank account to pay bills. If your home needs to be sold to pay for you to enter residential aged care or somewhere else more suitable, only someone with your power of attorney has legal authority to sell your house.
There may also be a problem if there is a dispute between family members over what decisions should be made and who should make them. If you have not appointed a decision-maker in advance there will be no one with the authority to decide for you and resolve any disputes between family members.
If you have not appointed an attorney or guardian, and there is a need for one, only NCAT or the Supreme Court can appoint someone to make decisions on your behalf. This can be time consuming, expensive and very stressful. A family member or other person who is interested in your welfare will have to ask the Guardianship Division of NCAT to be appointed as your financial manager and/or guardian. You will be asked to participate in the hearing of the case by NCAT. NCAT must listen to your wishes, but can override them if they think that following your wishes will not be in your best interest.
Therefore, the costs and time associated with making a power of attorney vastly outweigh not having a power of attorney in place. Many people think losing capacity is mostly concerned with old age and illnesses such as dementia, however there are many illnesses which can occur unexpectedly in younger people which may make them lose capacity.
An Enduring Guardianshipallows you to appoint someone (‘the Guardian’ to make lifestyle, health and medical decisions for you in the event that you may lose the capacity to make those decisions for yourself.
An enduring Guardianship can only make lifestyle decisions such as health decisions. You should make a Power of Attorney if you want someone to make financial decisions on your behalf if you lose capacity
The Guardian must be 18 years or over
If you appoint one or more persons you can decide whether the appointors will be able to make these decisions only if they all agree or you can decide that they can make the decisions independently of each other
Functions of the Guardian:
- Deciding where you may live
- Deciding what health care and personal services you receive
- Giving consent for medical or dental treatment
When does an Enduring Guardianship cease to operate:
- On your death
- Death of the Guardian
- If the Guardian resigns by giving notice in writing
- If you have lost capacity then the Guardian can only resign with approval of the NSW Civil an Administrative Tribunal
Please contact Speirs Law on 1300 574 789 or email firstname.lastname@example.org to make an appointment, or to ask any questions that you may have on your Estate Planning needs. Please like our Speirs Law facebook page.