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:
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 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:
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.
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:
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:
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.
Our experienced wills and estates lawyers are here to help - everything from getting your own affairs in order, to administering a Will when you're an executor, to challenging a Will.
Our Canberra office is now closed, but our team continues to serve ACT clients and are available for phone and video appointments. If you need legal advice, please call us on 1800 675 346.
We have lawyers who specialise in a range of legal claims who travel to Tasmania. If you need a lawyer in Hobart, Launceston or elsewhere in Tasmania, please call us on 1800 675 346.