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In episode three of ABC comedy Fisk, Helen Tudor-Fisk, a wills and probate lawyer at suburban Melbourne law firm Gruber & Gruber, found herself in a compromising position when she met with a client who was demanding power of attorney over her “demented” mother. 

Nearly all lawyers working in wills and probate would have found themselves in the same position as Helen at least once.  An appointment is made, there is a description in your diary “New client – power of attorney”.

You assume the client intends to instruct you to prepare power of attorney documents for themselves, appointing a person they trust to make decisions on their behalf if they aren’t in a position to do so themselves.  But then it becomes clear that the client would like you to prepare a power of attorney for someone else, most commonly a parent, who is not present at the meeting, who may have even already lost capacity.

Alarm bells should have been ringing for Helen at this point.

Disappointingly, we then see Helen hold another meeting with the daughter and the mother together and the mother is demonstrating odd behaviour, raising questions about her capacity.

Best practice would have warranted Helen insisting to meet with the client’s mother privately, without the daughter present.  This is because Helen needed to satisfy herself that:

  • the mother had the required capacity to execute a power of attorney
  • that she understood what a power of attorney was, and
  • that she was exercising free judgement when she appointed her daughter her attorney.

 

Appointing your power of attorney (POA) is a big decision and not one you should make lightly. When choosing and appointing the right person to act on your behalf, it's important to understand what this arrangement means both for you and for the person you choose. There are a number of factors you should consider.

A powerful document

A power of attorney (POA) is a legal document that allows you to appoint another person – the ‘attorney’ – to act on your behalf in legal and financial matters.

By appointing a POA, you’re potentially giving away enormous power and responsibility, and it’s important that:

  1. You’re confident that you completely trust the person you’re appointing to know what your wishes are and carry them out for you.
  2. You have thought about what restrictions (if any) you want to put on the authority you’re granting. For example, you might want your attorney to have the power only to do your banking and not deal with your real estate.

When does a POA come into effect?

By law, as soon as you sign the document and it’s accepted by your appointed attorney, they have the authority to act straight away. Some people may want to put limits on the timing, for example, they don’t want the POA to kick in until a GP certifies that they’ve lost capacity to act for themselves.

What can your appointed attorney do (and not do)?

Your attorney can do a wide range of things that you can lawfully do for yourself (subject to any restrictions you might put on the document). They can, for example:

  • buy and sell property
  • do your banking
  • pay your bills
  • communicate with all your service providers.

Depending on the state or territory in which you live, your attorney might also be able to manage your personal matters, such as medical treatment.

Among the things your attorney cannot do are:

  • vote on your behalf
  • make decisions about the care or wellbeing of your children or about the adoption of a child
  • make or revoke a Will
  • consent to a marriage, a sexual relationship or the dissolution of a marriage
  • enter into a surrogacy arrangement
  • consent to breaking the law.

 

With a Power of Attorney, you’re not giving away your rights: you’re simply delegating responsibility to another person if the need arises. If you’d like to talk to one of our team about important documents in planning your estate, please contact us.

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