Powers of Attorney

What is a Power of Attorney?

A power of attorney is a document where you ('the principal') authorises another (called 'the attorney') to act on your behalf.  This is generally in relation to decisions about finance and real estate.

The power of attorney cannot be used after you die and it ceases if you lose mental capacity. 

Can a Power of Attorney be enduring?

Yes, an “enduring” power of attorney is a very helpful tool at your disposal. 

If the power of attorney is “enduring” then it will continue if you lose mental capacity. This is particularly helpful when planning your estate and taking measures to protect your financial affairs and allow things to continue, even though you can’t make decisions yourself.

You can elect when you wish the enduring power of attorney to come into effect, that is, from the moment it is signed or it can come into effect only when you become of unsound mind.

"General" powers of attorney are regularly used for commercial or transactional purposes to conduct, for example, a sale or purchase of property.  For example, you might be overseas during the settlement phase of your real estate purchase and the “general” power of attorney can be used by your nominated “attorney” to sign necessary documents to ensure that this can happen in your absence.

Who should I appoint as my Power of Attorney?

An attorney can have significant power over your affairs. You should choose an attorney that you trust and who will manage your finances in a responsible way.

The best person to appoint as your “attorney” must be someone:

• over the age of 18 and
  
• you can trust,
  
• who is competent enough to make decisions and seek expert advice where necessary,
  
• who respects your wishes
  
• who is likely to be in the locality and
  
• healthy enough to carry out the appointment.
  

If your financial affairs are complex, you should appoint an attorney who is capable of managing complex affairs and is available to do so. You may elect Betar Lawyers as your Attorney, but fees will apply.  Betar Lawyers will:

• Act in your best interests at all times;
  
• Act honestly and protect your assets;
  
• Prepare and keep records of all dealings and transactions; and
  
• Not renounce a power during any period of your legal incapacity, except in limited circumstances.
  

It is also possible to appoint more than one attorney to act, and they may act jointly or severally.

• Jointly and severally - the attorneys can act together or separately;
  
• Severally - the attorneys can act separately; or
  
• Jointly - the attorneys must agree on all decisions.
  

Registration of your power of attorney is only required if the attorney is going to deal with your real property, for example, a mortgage, lease or selling your property.

How could this benefit my family and I?

A Power of attorney is an important part of your estate plan.  If you live with a partner (husband/wife, de facto partners, live partners), then you could consider appointing your partner.

If you are travelling regularly, for example, for work, then your “attorney” can action decisions on your behalf. 

If you are ageing and feel you are not as sharp as you use to be, then you would strongly consider appointing someone to be your attorney in the event that you rapidly loose mental capacity due to old age or other health factors.

Formalities

Given the serious nature of a Power of Attorney, there are some formal steps required to ensure that the Power of Attorney is valid.

Here at Betar Lawyers we can provide you with the information you need to make the best possible decision as well as ensuring all the formalities are fulfilled.

1. Witnessing

A general power of attorney requires only an ordinary witness i.e. adult person.

2. Certification

An enduring power of attorney requires a “prescribed” witness like a lawyer (barrister or solicitor) or a Registrar at the Local Court.

Without the “certification” the Power of Attorney will not be enduring and will cease if you lose mental capacity.

3. Acceptance by Attorney

An enduring power of attorney must be “accepted” by the appointed attorney.  Without this acknowledgment of acceptance the power of attorney will fail.

Benefits of Betar Lawyers

We can prepare your power of attorney on an individual basis or as part of your estate plan.  Either way, we can provide you with the best possible advice on the type of power of attorney to meet your needs.

Fees

A detailed fee estimate is provided to you.  This gives you the peace of mind of knowing exactly what you will pay.

Our promise to you is to provide you with full disclosure of the costs and expenses.

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