Enduring Power of Attorney
Unlike a Will, Powers of Attorney operate during your lifetime to allow an appointed person(s) to make decisions on your behalf and give effect to transactions on your behalf. This power can be either while you still have capacity to make your own decisions (but perhaps you want to delegate authority to someone else, or will be overseas), or if you lack the capacity to manage your own affairs (maybe because of illness or accident).
The types of powers which continue even after you have lost capacity to manage your own affairs are called Enduring Powers of Attorney.
- Financial Enduring Power of Attorney – This type of Power of Attorney will allow a person(s) to manage your finances, even in the event you cannot manage them yourself. Your attorney can undertake a range of financial and legal matters, such as accessing your bank accounts to pay bills, selling property and commencing legal proceedings.
- Personal Enduring Power of Attorney – Your personal attorney can make decisions about a range of personal matters such as where you live, what type of daily activities you do and who is prevented from visiting you. Of course, they won’t be running your life if you still have capacity to make these decisions yourself.
- Medical Enduring Power of Attorney – Appointment of Medical Treatment Decision Maker – Your medical treatment decision maker can make decisions about your medical treatment, operations and drugs, as well as authorising the switching off of a life support machine, if you do not have the capacity to make those decisions yourself.
- Advance Care Directive – Advance Care Directives set out your instructions or preferences in relation to your medical treatment in the event that you are unable to make your own decisions for that particular treatment or procedure in the future. You may include directions in relation to the following:
- >Operations or procedures, both invasive or non-invasive
- >Treatment for mental illness
- > Prescription or non-prescription pharmaceuticals
- > Life support
- > Dental treatment
- > Palliative care
- Advance Care Directives may contain either an instructional directive, a values directive, or both. An instructional directive is an express statement which takes effect as if you have consented to or refused consent to a particular medical treatment yourself. A values directive is a statement of your preferences and values as a basis on which you would like any medical treatment decision to be made on your behalf.
General Power of Attorney
A General Power of Attorney will allow an appointed person(s) to undertake financial and legal transactions on your behalf. However, this power will only operate while you have capacity to undertake those transactions and would end if you can no longer manage your own affairs.
For this reason, it is not a general estate planning tool, but might be appropriate if you are just overseas/interstate for a period of time, or need someone to take care of a business transaction for you.
Supportive Power of Attorney
A Supportive Power of Attorney allows you to appoint a person(s) who can assist you with managing your affairs, but cannot take active steps to manage them without your directions.
A supportive attorney can:
- Obtain confidential information about you from any person or organisation that holds such information.
- Communicate information about you or relay your instructions to any person or organisation.
- Take such other reasonable steps as is necessary to give effect to your decisions.
- Complete minor financial transactions.
Company Power of Attorney
Generally, the Directors of a company are the persons authorised to take action on behalf of the Company including signing contracts and entering transactions. However, it is often necessary for other authorised signatories to be established to give effect to transactions on behalf of the Company. This can be achieved by a Company Power of Attorney.
It should be noted that the Power of Attorney of a director of a company is not effective to allow their attorney to, in turn, act for the Company. The powers of a director are personal to the Director.
Company Powers of Attorney can also be useful estate planning tools, in allowing a person to act for a company and keep it operating, even if the primary director is deceased.
Mitchell Zadow, Managing Principal, Accredited Specialist (Commercial Law)
Binay Prasad, Senior Associate, Accredited Specialist (Wills & Estates)
Can we assist you to create a Power of Attorney?