Power of Attorney
Enduring Power of Attorney – What You Should Know
An Enduring Power of Attorney is a legal document which enables you to appoint a person (your attorney) to make decisions on your behalf about your finances and assets if you’re not able to do so.
The power can be one of three types:
– General – this will take effect immediately
– Enduring – when the appointment continues to be effective and enforceable if you lose mental capacity
– Specific – lists a specific period of time the document is to operate.
Your attorney must act with reasonable diligence to protect your interests or they may be liable to compensate you for any financial loss that occurs. Whoever you appoint to be your attorney needs to be someone you know well and trust.
Why you should appoint an Attorney?
All adults should have an Enduring Power of Attorney to ensure that your affairs are administered by a person(s) of your choice.
Should you lose mental capacity due to an accident, dementia or other illness and have not appointed an attorney, the Guardianship Board has the power to make an appointment on your behalf. For example, the Public Trustee may be appointed and the process takes time.
You may wish to appoint an attorney if you plan to travel for long periods of time to ensure your financial affairs can be handled in your absence or an attorney may act in circumstances of physical incapacity to make financial transactions easier.
Your attorney cannot make decisions about your medical treatment or daily care. Those decisions are made by a person appointed under an Advance Care Directive.
How do you appoint an Attorney?
You must be over 18 years of age and sign a document in the presence of an authorised witness such as a Justice of the Peace or solicitor. All attorneys that you appoint must also sign the document. In South Australia, an attorney’s signature needs not be witnessed.
The Enduring Power of Attorney document does not become effective unless it is signed and completed by all of your appointed attorneys.
The original document should be stored securely, such as in Andersons Solicitors’ deeds safe. Make sure your attorneys are aware of the location of your original documents and you can provide them with photocopies for their records.
You should instruct your lawyer to draft your Power of Attorney documentation at the same time as you make a Will.