Should I appoint a power of attorney?

If you have money and assets to protect, it’s probably a good idea to appoint a power of attorney sooner rather than later. A trusted power of attorney of your choosing can be given the authority to make decisions on your behalf, which may include everything from managing your bank accounts and selling your shares, to selling and leasing your properties. (Essentially, anything that you yourself can do when managing your financial affairs.) A power of attorney can also make medical decisions for you.

Appointing a power of attorney can be a difficult decision so it may be best to think about it while you can. If you haven’t appointed someone and do lose the capacity to look after your finances, management of your affairs may land in the hands of a state administrator.

The different types of power of attorney

In Australia, there are two main kinds of power of attorney:

  1. A general power of attorney refers to when you appoint someone for a specific reason or length of time, and while you’re still fully sound of mind. For example, you may need someone to manage your financial affairs while you’re travelling for an extended period. A general power of attorney ceases to apply if you lose your mental capacity to manage your own affairs or die.
  2. An enduring power of attorney refers to when you appoint someone to make decisions for you should you lose the mental capacity to manage your own affairs. For example, in the case of illness such as a stroke, or an accident, that causes permanent brain damage. One of the most common reasons that older people invoke their enduring power of attorney is the onset of dementia. An enduring power of attorney ceases to apply at your death, which means it doesn’t affect your will.

How much authority does a power of attorney have?

That’s entirely up to you. You may appoint a general power of attorney to take care of affairs for a one-off event such as an extended trip. In which case, you might give very limited and particular powers, such as the power to sell an investment property. However, if you appoint an enduring power of attorney to make decisions for you in old age – for example, you’re diagnosed with dementia – then authority may extend to managing bank accounts and superannuation, and entering into agreements with health care providers, such as an aged care home.

The types of decisions a power of attorney can make

For legal and financial decisions, it’s up to you to decide how much power you want to give a power of attorney – and this applies to a general power of attorney and an enduring power of attorney.

For medical, health and lifestyle decisions, the rules vary from state to state – NSW, QLD, WA, VIC, TAS, NT, SA and ACT. A legal professional who specialises in wills and estate planning in your state or territory will be able to provide detailed advice on what you need to do to best suit your individual circumstances.

Nominating a power of attorney

It makes sense that you’ll want to be sure that you trust the person you choose as your power of attorney. After all, you are appointing them to make potentially life-changing decisions for you. As such, most people nominate a spouse or partner, life-long friend or relative, such as a child. You can also nominate a supplementary power of attorney to take charge if your original power of attorney is no longer available because of ill health or an accident. For example, you may choose to nominate your spouse to be your power of attorney and then two of your children to be joint supplementary powers of attorney.

You may also choose to nominate a trustee organisation, such as your power of attorney, depending on how complex you think your financial affairs are.

Keep in mind that you can revoke or cancel a power of attorney at any time, as long as you have the mental capacity to do so.

How to establish an enduring power of attorney

To establish an enduring power of attorney, you must be over 18 and have the mental capacity to understand the significance and consequences of your decision. You will then need to complete and sign an enduring power of attorney document in the presence of a solicitor, barrister, licensed conveyancer or employee of the public trustee of the state, i.e. someone legally qualified to act as a witness.

The same witness also has to sign a document that states they have explained the enduring power of attorney to you – and that you understood the explanation (thereby proving your mental capacity). Anyone named in the document will also be required to sign it to indicate they accept their responsibilities.

The bigger picture

Appointing a power of attorney is one part of the bigger picture for planning ahead. Other things you may also want to think about are writing (or reviewing) your will and considering funeral insurance, which can help ensure your family has the financial support they may need to help cover funeral costs, debts and other expenses when you’re gone.

Taking the time while you’re healthy and well to think about these things can help your loved ones know what you want for the future. They’ll then be in a position to best fulfill your requests.

Apia Funeral Insurance can help you prepare for the future.

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