Although a power of attorney or guardianship is a difficult topic to discuss, it is an essential conversation you must have. A power of attorney is a document whereby one person (called ‘the principal’) authorises another (called ‘the attorney’) to act on his or her behalf, generally in relation to financial and property decisions. This attorney can be anyone over the age of 18. The power of attorney cannot be used after you die and will also expire when you lose mental capacity – unless it is spec an enduring power of attorney.
Powers of Attorney
A power of attorney is a document where you (the “donor”) appoints someone else (the “attorney”) to make financial and legal decisions on your behalf.
You may appoint one or more attorneys. If there is more than 1 attorney, you may specify whether they:
• must act “jointly” (that is, all attorneys must come to an agreement as to the final decision); or
• may act “joint and severally” (that is, they can make decisions in agreement with each other or independently if they wish).
A power of attorney is a versatile document which provides the donor with a high degree of control as to delegation of these decision-making powers. Some variables which the donor decides include:
• when the appointment becomes effective;
• the length of time the attorneys have power (this may be confined to a specific period or enduring);
• the transactions or scope of the attorney’s power to make decisions
However, it should be noted that Powers of Attorney account for financial and legal decision only.
In order for someone to make personal, lifestyle and medical decisions on your behalf, you will need to appoint an Enduring Guardian. Personal matters generally include education, employment, health care and lifestyle decisions.
A guardian must consider your wishes but ultimately, they should make decisions in your best interests.
For example, where an elderly woman with dementia wishes to remain living at home but risks falling over or forgetting to turn her stove off, the guardian will need to weigh up her need for an aged care facility and her desire to live at home.
It is possible that an appointed attorney or guardian might act outside the scope of their authority so it would be wise to choose someone you trust to ensure this does not happen.
Advanced Health Care Directives
An advanced health care directive differs from a Power of Attorney and Enduring Guardian in that your wishes or directions regarding your future health care are directly stated on a document that can be accessed by doctors prior to them treating you. No guardian or attorney is appointed under this instrument.
You can list the medical treatments that you consider acceptable or desirable for different types of medical conditions, or whilst you are in various stages of illness. This will give you confidence that your wishes regarding health care will be carried out if you can’t speak for yourself.
An advance health care directive could also be given to your Enduring Guardian who can be informed of your wishes to assist them in making tough decisions on your behalf if and when the time comes.
At The Quinn Group our team of lawyers can assist you to tailor your power of attorney to a specified individual task. We can also draft a broad power of attorney to cover many financial matters and transactions, depending on what you require. The power can be given to start immediately or upon the onset of mental incapacity. The power of attorney will enable your affairs to be managed by a person of your choice when you are unable to conduct those matters yourself. If you have any queries or require more information regarding a power of attorney submit an online enquiry or call 1300 QUINNS (784 667) to book an appointment.