What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document where someone you trust is legally authorised to make a decision on your behalf after the person granting it has lost their mental capacity.
Appointing an Enduring Power of Attorney is an important part of planning for your future.
While you're fit and healthy you can sometimes take for granted your ability to make your own decisions. But you can never know if or when something might happen that takes your autonomy away, either temporarily or forever. This situation is when an Enduring Power of Attorney document comes in handy, and our expert lawyers can guide you through the process.
What power does an Enduring Power of Attorney have?
An Enduring Power of Attorney gives a person you trust the power to make important financial, property and some personal decisions for you. A few of the common duties your chosen person may carry out on your behalf include:
- managing your money and bank accounts
- paying your bills
- managing, selling or renting out your home
- finding you a new, more appropriate home
- signing certain documents.
This person's power endures/continues if you are ever in the position where you can suddenly no longer make or understand your own decisions. This might be after you’ve been in an accident, you've fallen ill or even if you are just overseas or can't be reached.
You need to create a separate document if you want the same or another person to make decisions about your medical treatment. The form's name differs between each state, but the roles have similarities to those of a Medical Treatment Decision Maker.
Our expert lawyers can prepare your Enduring Power of Attorney document for you, providing you with the best advice to ensure your decision is legally sound and expresses your wishes. Note that we currently only provide this service in VIC.
Who can appoint an Enduring Power of Attorney?
To create a legally binding Power of Attorney document you must be:
- 18 years old or over
- of sound and capable mind.
This means that you must complete this document (and have it witnessed) while you are competent and able to understand what you are doing. In other words, before you lose mental capacity. Plus, it's important to know that you can only appoint enduring powers for yourself.
If you run out of time and lose capacity before you get around to appointing your own attorney, one of two things can happen to ensure your best interests and human rights are protected:
- Your spouse or close family member can apply to the Guardianship Tribunal, or equivalent, in your state to become your financial decision maker.
- The Guardianship Tribunal will choose a guardian or administrator if they don't think your family member is fit to take on this role.
The top 3 considerations when appointing your attorney
Completing the official form is the simplest part of this entire process. The important, and more time-consuming considerations for appointing an Enduring Power of Attorney are:
- Choosing who your attorney/s will be
Choose someone you trust and know will act in your best interests, understand your views and carry out your wishes. Your chosen person can be any competent adult who is over the age of 18 and able and willing to act on your behalf.
- When they get power
You choose whether your attorney can gain authority as soon as you complete your form or only if and when you lose mental capacity.
Regardless of when this person's power begins, you will always continue to make your own decisions while you have full mental capacity.
- What they will have authority over
You can include a set list of conditions or restrictions that you want your attorney to abide by. It's extremely important that you fill this section out properly.
Our lawyers can help you word this section of the Enduring Power of Attorney form in a way that ensures your attorney has to follow your wishes when you can't be there. Filling out this section incorrectly might also prevent your attorney from doing their job efficiently.
Can an Enduring Power of Attorney be revoked?
You can also revoke an Enduring Power of Attorney whenever you like as long as you are still mentally fit to do so.
What may seem complicated and confusing to you is bread and butter to our trained team. Let us take any further stress out of the situation. Our lawyers will guide you through the entire process of appointing an Enduring Power of Attorney. Your needs are our absolute focus.
Is there a difference between Enduring and General Power of Attorney?
There sure is. The main difference between the two is when and how long the attorney's power stands.
A General Power of Attorney document means that a person can make your financial decisions while you have full mental capacity. If your mental capacity goes downhill, and you can no longer make or understand your own decisions, only an Enduring Power of Attorney will be legally valid.
How can a lawyer help you with appointing this attorney?
The Enduring Power of Attorney document is one of the most crucial and risky documents you create. Your entire estate or outcome of your life's work and effort could fall into the hands of the person (or people) you nominate as your attorney.
So while you can complete this document yourself without any legal advice, you have a tonne to gain from working with an experienced lawyer.
Your lawyer from Maurice Blackburn will put your unique values and wishes as top priority. We take the time to explain every available option you have when completing this form and will help make sure you take the best and smartest decisions for your situation.
We will also ensure that:
- You understand every possible outcome from giving someone power over your financial and property decisions.
- You include (and exclude) the correct vocabulary that ensures your wishes are clear and will be followed in your absence without question.
- There is no ambiguity in your document that your family, close relatives or the court could argue over or challenge.
- Your final document is properly witnessed.
If you have any questions about power of attorney, or if you need help resolving a Will, trust or estate-related matter, get in touch with us today. We can take your call 24/7 and we're ready to work with you right away.
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- A standard Will
- Enduring Power of Attorney
- Appointment of Medical Treatment Decision Maker
- Advance Care Directive
- Statement of Wishes
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