A Power of Attorney is a legal document whereby one person grants another person the authority to make legal and financial decisions on their behalf. A Power of Attorney can be used in several ways – from having another take care of your affairs whilst travelling to times of extended illness.
An Enduring Power of Attorney takes this a step further, whereby the person nominated to manage the affairs (also called the Donee) may continue to manage the affairs once the person giving the power (also called the Donor) is found to have diminished mental capacity due to injury or illness. This arrangement can remain in place as long as the donor is still alive.
Powers of Attorney can be prepared in two ways to come into effect immediately and to continue once the donor suffers a loss of capacity; or to come into effect at a future time (such as the onset of mental incapacity).
In order to sign a Power of Attorney, the donor must be capable of understanding the nature of the document they are signing and its effect. It is therefore important in situations where a Power of Attorney must be appointed that it is done so in a timely manner.
Who can make a Power of Attorney?
Anyone over the age of 18 who has the capacity to understand the nature and consequences of the document, who makes the decisions in the document of their own free will and who can communicate clearly what those decisions are.
When should I make a Power of Attorney?
Before you need them! These documents safeguard your interests in the event of something unforeseen, an accident or illness that robs you of your capacity to make decisions for yourself. It is better to be prepared and confident in knowing that the person you choose will be making important decisions about your money, your living arrangements and your health.
When does it start?
For a Power of Attorney (Financial) it begins when you nominate that it should. Powers of Attorney (Medical Treatment) only commence when you are unable to make your own decisions.
Who should I appoint to be my Attorney?
You need to appoint someone your trust to make the right decisions. With an Enduring Power of Attorney (Financial) you can appoint more than one person to make the decisions jointly.
What are the legal responsibilities of my Attorney?
They are legally responsible to you and must act in your best interests. While you have mental capacity they must obey your instructions. They cannot give gifts to themselves or to anyone else unless you specifically authorise this and they must keep their finances and money separate from yours, keeping accurate records of all of their dealings with your money.
Who should I talk to about it?
It’s really important that you discuss these documents with a lawyer who can give you professional advice about your particular circumstances. It’s also vital that you discuss your wishes with your family to avoid unnecessary conflict and stress.
Do I need a witness?
Yes, these documents need to be witnessed by a person with statutory authority such as a solicitor or Notary Public.
Can I change my mind?
Yes, as long as you still have the decision making capacity to do so you can revoke or change these documents. This has to be done in a legally binding way, however, so please seek legal advice.