Having full knowledge about the Powers of Attorney is important. This will greatly help in different situations, especially unexpected ones.
A General Powers Of Attorney is provided by the Donor to an Attorney or Attorneys. It gives them the authority to perform certain tasks on behalf of the Donor. The authority can be limited to specific tasks such as accessing your bank account. In some cases, it can provide the Attorney(s) with the authority to handle all your affairs in the event that something unexpected happens to you. A typical example of the use of a General POA would be when people travelled overseas.
You may wish to consider including an expiry date in this type of POA.
As in the case of a General POA, an Enduring Powers Of Attorney gives the Attorney(s) the authority to perform certain tasks on behalf of the Donor. An Enduring POA can also be limited to specific situations. Whereas a General POA would cease to be effective if the Donor loses mental capacity. An Enduring POA, as the name suggests, would continue to be effective in this event. This is the most important distinction between the two types of POAs. Careful consideration should be given to which type best suits your particular situation.
A typical example of the use of an Enduring POA is where the Donor is an elderly person who wishes to have a relative or close friend look after their affairs. This is in the event that they suffer a stroke or other potentially mentally debilitating event. As well as the obvious advantage of having your attorney take care of paying bills and handling your affairs, it can also help avoid the expense of applications to the Protective jurisdiction of the Supreme Court. Also, the ongoing cost of administration when dealing with the Court.
When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death. This is done by drawing up a will. Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a will. Total intestacy occurs when the deceased failed to make a will at all. This can also be the case when the deceased failed to make a valid will. In some cases, it is when they made a valid will, but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid will, but the terms of the will do not dispose of the whole of the estate.Â
Knowing that you have a properly appointed attorney can give you peace of mind when you:
It is important to choose someone you trust who is capable of looking after your affairs. This may be a relative or a friend. Depending on the circumstances, you may wish to appoint more than one attorney. If you appoint more than one Attorney, you should decide if you want them to be able to act together (Jointly) or act alone and together (Jointly and Severally). Having your Attorneys restricted to acting Jointly is usually safer, but it can also introduce potential problems in situations where something requires urgent attention and one or more of the Attorneys cannot be contacted.
Joint Attorneys must all act together and cannot act separately. A Joint appointment will terminate if the appointment of one of the Attorneys is revoked. Another case is when any one of the Attorneys dies, disclaims, goes bankrupt, becomes physically or mentally incapable of acting as an attorney.
If the Donor has Joint and Several Attorneys, then the Attorneys can all act together or they can act separately if they wish. The death, disclaim, bankruptcy, mental or physical incapacity of one Attorney will not automatically terminate the power.
A General POA requires that it is witnessed by one person 18 years or older. The Witness may not be the person who is your nominated Attorney.
An Enduring POA be witnessed by a Prescribed Witness under the relevant State legislation. Witnesses can be one of the following:
Please remember that you should NOT sign your POA until you are in the presence of your Witness.
It is very important that the witness who is providing the Certificate is satisfied that the donor understands what they are signing. If there is any doubt, the witness should take whatever reasonable steps are required to confirm the mental capacity of the donor.
You can cancel your POA at any time by destroying the original AND informing your Attorney (preferably in writing) that they are no longer your Attorney.
This is very important in the case of an Enduring Powers of Attorney that the Attorney(s) are informed IN WRITING of the revocation. Also, keep in mind that the ORIGINAL Enduring Power of Attorney is DESTROYED.
If your POA has been used to sign documents and the POA has been ‘notarised’ and the POA registered, then you can only cancel your POA by providing the body with whom the POA is registered, with a Revocation of Power of Attorney together with a fee (see Document 6). This is also true if you are paying your Attorney in some way for them acting as your Attorney.
If you wish to change some aspect of your POA, it is safer to destroy the old one and have a new POA executed.
In the case of a General POA, your POA remains effective until you choose to revoke it. This is also the case when you become mentally incapacitated, or you die. Of course, you may also include an expiry date in your POA.
Another is in the case of an Enduring POA, your POA remains effective until you choose to revoke it or you die.
In the case of both types, your POAs will become immediately ineffective if your Attorney dies. Another is when your Attorney is incapable of acting on your behalf. Also, in the event that you have more than One Attorney, and the remaining Attorney is still capable of acting, the POAs will continue to be effective.
Although your POA does not need to sign your General POA, it is advisable to have them sign to confirm they accept and understand their responsibility.
YES.
Your attorney will need to sign the original POA document. This is a way of confirming that they understand the power that they may accept the responsibilities that follow.
The Powers Of Attorney will not operate until it is accepted by the Attorney. It is always advisable for the donor to discuss their intentions and plans with the proposed Attorney before executing the document.
AussieLegal offers a number of legal kits and paralegal services. This includes helping you with Powers of Attorney and others that are specifically designed to help family members make a personal application and save thousands in legal fees.
Reach out on 1300 728 200 to discuss your situation with one of our consultants.
