Power of Attorney – when will I need one?

what is power of attorneyA ‘Power of Attorney’ is a document you can sign to appoint another person, (your Attorney) to act for you in relation to your financial and legal affairs.

Even though you have appointed an Attorney, you can still personally carry out any transactions, such as banking and the sale of property, whilst ever you retain the ability to do so.

A Power of Attorney may only last for as long as you specify; that can be between specific dates (for example if you are going on holidays) and it can be revoked at any time. An Enduring Power of Attorney is valid if you are unable, or have lost capacity, to make decisions for yourself.

What is an Enduring Power of Attorney?

If you want the authority you give your Attorney to continue even if you lose the mental capacity to make your own decisions, you need to sign a document called an ‘Enduring Power of Attorney’.

An Enduring Power of Attorney differs from a general Power of Attorney in that:

  • the intention for the Enduring Power of Attorney to continue if you lose mental capacity is expressed in the document;
  • your Attorney/s must accept the appointment before the Power of Attorney can come into effect;
  • your signature is to be witnessed by a person such as a Solicitor, Barrister or Local Court Registrar. The witness cannot be the person you propose to act as your ‘Enduring Attorney’;
  • the person witnessing your signature must also complete a certificate about your understanding of the nature and effect of the document;
  • you can appoint more than one Enduring Attorney if you wish.

When can an Enduring Power of Attorney be given?

An Enduring Power of Attorney must be made when you are of sound mind. You can make Enduring Power of Attorney arrangements that come into effect immediately, or that remain ‘dormant’, and only come into effect in particular circumstances. For example, you could decide to complete an Enduring Power of Attorney that becomes active only when you are unable to manage financial matters for yourself, or whilst you are away overseas

Who can I appoint as my Attorney?

The person you appoint should be someone you trust. He or she must be 18 years or over.

Can an Attorney look after my real estate interests?

If you want your Attorney to be able to sell or deal with real estate on your behalf, the Power of Attorney must be registered with the Land and Property Information Service. It is also a good idea to register the Power of Attorney if you want your Attorney to be able to sell or deal with shares on your behalf, as some brokers or companies may require this, even though the law does not.

If you need a Power of Attorney contact our office to arrange for one of our Solicitors to draw up a Power of Attorney for you.