Power of Attorney – it’s one of those phrases you’ve heard thrown around on TV and into the occasional conversation, but have you ever actually taken the time to understand what it is and think about whether you might need one?

What is a Power of Attorney?

The Queensland Government says, “A power of attorney allows you to appoint someone you trust to make decisions for you during your lifetime”. That person is known as your attorney (separate from your lawyer who is your solicitor). Also, that person once empowered must make decisions that are in your best interest.

Basically put, it’s a legal document outlining your wishes to appoint someone else to make decisions for you while you are still alive.

In short, it is a living Will.

There are two types of Power of Attorney in Australia – General or Enduring.

What is a General Power of Attorney?

A General Power of Attorney grants to an attorney the power to make decisions for you for a specific period or event. For example, you are going overseas and need someone to sign documents for you.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney allows your attorney the ability to make decisions regarding financial matters and/or personal matters including health. Also, you can choose when these powers begin, either: 

• Immediately

• When you lose capacity to make the decisions yourself

• Specific dates or events 

• In specific circumstances

For example, if you do FIFO (fly in, fly out) work and want to make sure should something unfortunately happen to you while away, someone can make decisions that are in your best interests.

Also, you can nominate to have someone notified when the powers begin, as well as when they are used or actioned. This notification should be to a third party to make sure the decisions being made are indeed in your best interests.

Who can have a Power of Attorney?

Anyone who is over 18 years of age and can understand the nature of the document is able to appoint an attorney.

Why should I have a Power of Attorney?

There are several reasons that someone may want a Power of Attorney in place. In a lot of cases, it may be a sort of insurance in case something unexpected were to happen to you, that rendered you incapable of making your own decisions. 

Some examples of situations that you might like to have one in place for are:

• Buying or selling a house

• Managing investments

• Paying Bills

• You are unable to make decisions for yourself due to injury or illness

• You have limited physical mobility

• You are at an age where you believe it best that someone else makes your decisions

What happens if I don’t have a Power of Attorney?

If you don’t have an Enduring Power of Attorney and you lose the capacity to make decisions for yourself, firstly the Public Trustee of Queensland will be appointed your financial attorney and the Office of the Public Guardian (Qld) will be appointed your health attorney.

Someone you know may apply to the Queensland Civil and Administrative Tribunal (QCAT) to become responsible for your decisions, but this process has no guarantee of success and can be costly.

Who should I choose as my Attorney?

The role of an Attorney is a very important one as they will be responsible for making decisions on your behalf. It’s vital that you choose someone you can fully trust to look after your interests.

Some options for who you might like to consider include:

• Family Member

• Close Personal Friend

• Last resort, a professional you trust such as an accountant or lawyer

If you cannot think of anyone to appoint as attorney, you may choose the Office of Public Guardian (Qld) or the Public Trustee of Queensland to perform the role however, it’s important to note that they do charge for this service.

Can I have more than one Attorney?

You can appoint as many Attorneys as you like. It can often be a good idea to have more than one in case your Attorney declines the role or is unavailable when a decision needs to be made.

If you choose to appoint more than one Attorney, you will need to decide how you would like them to use their power: 

• Jointly - they all must agree unanimously on a decision (maximum of 4 Attorneys allowed for this)

• Severally – any one of them can make the decision

• By Majority – More than half of your Attorneys must agree on a decision (Minimum of 2 Attorneys required)

• Successively in the order named is a first in line clause, i.e. A and B are your attorneys successively, so A is first, then if something happens to A, B becomes your attorney.

Conclusion

By now, you should have a much better idea of what a Power of Attorney is and why it’s a great idea for anyone over 18 years of age to have one in place. 

If you are ready to talk about creating your own Power of Attorney, book your FREE Wills and Estates Call now for an obligation-free chat.