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Power of Attorney

Our Wills and Estate Planning Team can help you with a Power of Attorney, for both your personal and business needs.

If you are concerned about what would happen to you if you lost capacity due to an injury or advanced age, or if you suffered an illness rendering you unable to make decisions regarding your well being, a Power of Attorney can deal with that. You can elect for your attorney to make decisions for you immediately or if you become incapacitated, but your Power of Attorney can ensure decisions made on your behalf are according to your wishes.

A Company Power of Attorney can also be used to authorise someone to act on behalf of your company and/or sign certain documents on your behalf.  If you are the sole director of your company, a Company Power of Attorney will ensure someone can make decisions on behalf of your company in the event you become unable to do so.

We prepare Powers of Attorney for various Australian States and Territories. We can also assist your attorney to register your Power of Attorney at the relevant Land Titles Office, so your attorney can deal with your property. Similarly, we can also assist you to revoke your Power of Attorney.

What we do

  • Preparation and registration, or revocation of Powers of Attorney, Enduring Powers of Attorney and Medical Powers of Attorney
  • Preparation of Enduring Guardians
  • Preparation of Company Powers of Attorney

The MV difference

  • A commitment to protecting your interests having regard to both legal and non-legal issues.
  • A commitment to collaborating with you, understanding your concerns and wishes upon your potential incapacitation and adapting a plan for how your attorney will act and carry out your wishes.
  • An expert team who specialises in drafting and preparing powers of attorney, providing a holistic and tailored service to ensure your power of attorney fits in with your estate planning objectives.
  • A focus on practical and commercial plain-English advice borne from real-life experience by our lawyers.
  • Frank and fearless advice to you about the legal and non-legal advantages and disadvantages of your proposed Power of Attorney.

FAQs

What does a Power of Attorney do?

A Power of Attorney is a document which allows other people to make decisions for you.  It can only be used while you are alive and is void on your death.  You can choose if the powers come into effect only if you are incapacitated, or immediately if you want your attorney to make decisions on your behalf as soon as you sign the document.

For example: an ACT Enduring Power of Attorney deals with property and financial matters, health care matters and medical research matters in the one legally binding document.  It allows you to appoint one or more attorneys to deal with such matters. It can also include specific limitations, directions or conditions for your attorney when exercising his or her power.

What is the difference between a General and Enduring Power of Attorney?

A General Power of Attorney can only be used when you have the legal capacity to make decisions for yourself. It allows your attorney to make decisions on your behalf for a specified amount of time.  For example, you may need your attorney to sign documents to enable the sale of your home while you are travelling overseas.

An Enduring Power of Attorney can operate both when you have capacity and when you do not.  This type of document deals with financial, property, personal, health care and medical decisions.  ‘Enduring’ means that the power remains, even when you are incapable of making decisions for yourself.  You can limit your attorney’s powers and decide how they can and cannot act.  For example, you can specify what type of medical treatment your attorney can consent to or whether or not they can sell your home.

What are the responsibilities and obligations of an attorney?

Your attorney has to sign the document to accept his or her appointment.  It is important to note that the decisions made by your attorney will have the same legal effect as if you had made them yourself.

According to the ACT Law Society, an attorney must:

  • act in your best interests;
  • wherever possible, make the same decision that you would have made;
  • keep accurate records of dealings and transactions made under the power;
  • avoid situations where there is a conflict of interest; and
  • keep your property and money separate from their own.
When does an Enduring Power of Attorney become effective?

You can decide when the powers listed in your Power of Attorney can be used. For your property (including financial) matters, you can choose either immediately or only when you have lost capacity.  Personal and health care decisions can only be made for you when you do not have capacity. A medical practitioner must certify, in writing, that you do not have capacity and that you lack decision making abilities.

Who should I appoint as my attorney?

Your attorney must be 18 years or older, and should be organised and responsible.

Given your attorney will have access to all of your records and manage your affairs, it is imperative that you choose someone you trust. Your attorney is your personal choice. Examples include your spouse, partner, children, siblings, parents, close family friends or another trusted person (such as your lawyer for legal matters or your accountant for your financial matters) who is willing to take on the role.

Prior to appointing your attorney, you should also ensure that he or she is willing to act in that role.

Can I revoke my Enduring Power of Attorney?

You can revoke your Power of Attorney at any time, in writing, if you have the capacity to do so. Occasionally an Enduring Power of Attorney can be revoked inadvertently. For example, by marriage or divorce, or the death of a joint attorney. If one of these events occur, you should review your Enduring Power of Attorney and your Will.

What is a Company Power of Attorney?

A Company Power of Attorney authorises an attorney to act on behalf of a company and/or sign certain documents on its behalf.  Your personal Power of Attorney cannot be used by your attorney to deal with company affairs.

If you are a company director, particularly a sole director, we strongly recommend the relevant company executes a Company Power of Attorney. For example, if you are the sole director and you lose capacity to make decisions, your business could come to a standstill if there is no one legally authorised to sign documents on the company’s behalf.

A company is a separate entity to you. Even if you have a personal General or Enduring Power of Attorney which covers financial matters, these powers do not extend to the company. This means your attorney cannot sign documents on behalf of the company using your personal documents.