Enduring Power of Attorney

Appointing someone as your power of attorney gives them the legal authority to look after your affairs on your behalf.

A power of attorney is a legal document made by one person, who is called the ‘principal’, that allows another person to do things with the principal’s money, bank accounts, shares, real estate and other assets. This can include spending and managing the principal’s money, buying or selling shares for the principal or buying, selling, leasing or mortgaging the principal’s house or other real estate investments. The person who does these things for the principal is called the ‘attorney’.

The person appointed as attorney can be any person over the age of 18 years who is able to assist the principal with money or property – a relative, friend or professional adviser.

Enduring power of attorney
An enduring power of attorney, unlike a general power of attorney, is one which continues to operate after the principal has lost mental capacity. An enduring power of attorney is normally used if the principal wishes their attorney to make decisions for them in the long term. An enduring power of attorney can be useful because you may become unable to look after things for yourself at some stage in the future. This could be due to physical problems, loss of mental capacity or something unforeseen such as an accident.

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An General Power of Attorney is only legal while you have capacity. If you want to make sure your attorney can still operate if you lose capacity, you will need to appoint an Enduring Power of Attorney. An Enduring Power of Attorney will continue to have effect after you have lost your capacity to self-manage. This is important for everyone, but particularly for elderly people.

A Power of Attorney does not relate to decisions about your lifestyle, medical treatment or welfare. Where you live, who you live with and what health care you receive are covered by Enduring Guardianship.

Any Power of Attorney ceases when you die. The executor named in your Will then takes over the responsibility of administering your estate.

An enduring power of attorney can be tailored to meet your circumstances. You can make special directions in the power of attorney document about what you want your attorney to be able to do or impose limits on what they can do.

When does an Enduring Power of Attorney become effective?

When you complete your enduring power of attorney form, you have choices about when your attorney can start to make your property and financial decisions. It could start immediately or it could start only when you have lost the mental capacity to make your own decisions. You decide.

Do I have to register my enduring power of attorney?

You will only need to register your power of attorney if you intend to have your attorney make decisions relating to real estate transactions. The power of attorney needs to be registered with the appropriate authority in your state.

Who can I appoint as my attorney?

Any person over the age of 18 years can act as your attorney. It can be a close family member or a friend who you trust. You should ask the person you want to appoint if they will agree to be your attorney and look after your money and property. Only appoint a person you can trust to look after your affairs.

Who needs to sign my power of attorney as a witness?

In order to be a valid Enduring Power of Attorney, your signing of the document must be witnessed by a “prescribed person”. Prescribed persons include: barristers, solicitors, licensed conveyancers, registrars of the local court, and many other individuals. There are differences between states in who can witness the documents. Guidelines included with the enduring power of attorney documents produced by My Will Online will provide full details of valid witnesses.

What should I do with my enduring power of attorney when I have completed it?

Your original enduring power of attorney should be stored in a safe place, possibly with other important documents you have made, such as your enduring power of guardianship, advance health directive and will. It is also highly recommended that you tell your attorney where your original enduring power of attorney is stored, so they can access it if required.

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