Welcome to the this month’s Mornington Legal Blog, where we are concerned with Powers of Attorney.
What is a Power of Attorney?
A Power of Attorney is a legal document whereby you are formally appointing a person to make important decisions on your behalf when you need it the most.
Your attorney (being the person you appoint) is personally vested with the authority to manage your assets, financial and legal affairs on your behalf. You can appoint your attorney to act:
- immediately on your behalf in accordance with your directions; in the alternative,
- act on your behalf only when you do not have mental capacity
You can revoke a Power of Attorney at any time provided you have the capacity to do so.
Types of Powers of Attorney
There are a number of different types of Powers of Attorney which exist under Victorian law today. These include financial power of attorney such as an Enduring Power of Attorney (which endure beyond the maker loss of capacity – ie dementia) and a Non-enduring Power of Attorney which will cease to have effect if the maker loses capacity. The former usually grant an indefinite broad ranging power to the attorney while the latter are commonly used for specific reasons or events – eg to bid at an auction.
Until recently there were also Medical Powers of Attorney (now known as an Appointment of Medical Decision Maker).
This article deals mainly with financial powers of attorney.
Who can I appoint as my Attorney?
You can appoint any person as your attorney provided, they are over the age of 18 years, formally accept their appointment and have mental capacity. Most commonly, a person will choose to appoint an immediate family member, a trusted relative or a friend as their attorney.
What is the most common Power of Attorney?
The most common form of a Power of Attorney is financial and there are a number of reasons why someone may appoint a person to manage their financial affairs, including:
- they have an illness and are physically incapable;
- if in the future they become incapable, and do not have capacity as certified by a medical practitioner;
- if they are travelling;
- if someone does not want the personal burden to manage the day-to-day conduct of their financial affairs.
Your Attorney can manage most financial matter for you including:
- accessing your bank account;
- assist with your day-to-day finances;
- payment of your bills;
- assist and manage your property and investments;
- voting at meetings;
- pursuing account receivables;
- paying for accommodation fees.
Why do I need an attorney when I have appointed an executor in my will?
There is an important distinction between the role of an Attorney and the role of an Executor, as often each term is used interchangeably. Your Attorney is only authorised to manage your legal and financial affairs when you are alive whereas, upon your death the authority to manage your affairs vests with the Executor of your Will.
Do I need a Power of Attorney when I am young and healthy?
A person of any age and health should consider making a Power of Attorney. We do not know what will happen in the future with our health and should you become incapable to manage your own affairs, your attorney can use your own funds to manage your affairs, without leaving a financial burden upon your family.
Can someone make a attorney when they do not have capacity
You can not make a Power of Attorney if you do not have capacity and a formal application would be required to the appropriate Tribunal.
For more information or to make an appointment to discuss Powers of Attorney please feel free to contact Chelsea Jenkins, solicitor, directly at chelsea@morningtonlegal.com.au
This article was written by Chelsea Jenkins, and published within the category: Articles.
You can also find further information in our: Children and Family Law - Frequently Asked Questions, Children and Family Law, Family Law Property - Frequently Asked Questions, Family Law Property, Child Support, Divorce, Purchasing Property, Selling Property, Subdivisions, Business Sales and Acquisition, Building And Planning, Small Business, Debt Recovery, Leases and Agreements, Power of Attorney, Wills and Estates Planning, Probate and Guardianship sections.
If you require advice, assistance or guidance, in any legal matter, please call today on (03) 59757611 or Enquire Online.