How Best to Appoint your Enduring Attorneys

By 20 February 2018Future Planning
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An enduring power of attorney is a legal document authorising another person to act on your behalf in managing your affairs.

An attorney can be appointed to make personal, health and/or financial decisions on your behalf. Any decisions your attorney makes for you will have the same legal effect as if you made them yourself.

Who can be my attorney?

It is important to find someone you trust to act as your attorney. They must be at least 18 years old and must not be:

  • your paid carer (a person receiving a carer’s pension is not considered a paid carer);
  • your health care provider (e.g. your doctor); or
  • a service provider for a residential service where you live.

If you are appointing them to make financial decisions for you, they also must not be bankrupt.

What should I think about in choosing my attorney?

For personal and health matters, you should consider immediate family members (such as your spouse, sibling or adult child) or a close friend who understands your personal wishes and health care needs.

For financial matters, it is important to consider someone who is responsible with their own money and understands financial matters. Again, you should consider your immediate family members or a close friend who you trust to protect your assets.

You can appoint a trusted advisor such as an accountant or lawyer as your financial attorney if you wish to do so, either to be your only financial attorney or to act jointly with your family member or close friend. If you choose to appoint an accountant or lawyer, they are entitled to be paid for the time they spend acting as your attorney.

How many attorneys can I have?

You can name as many attorneys as you choose, and you can specify how you would like them to work together. For example, attorneys can act:

  • Solely, if you have only appointed one attorney.
  • Jointly, so that the attorneys must agree together about every decision. This can give you reassurance that they will keep each other accountable for making the right decisions on your behalf, but it can also cause problems if one attorney isn’t easily contactable or doesn’t get along well with the other.
  • Severally, so that any one attorney has the power to make a decision on their own. This can be the most practical solution for making decisions quickly and easily, but there can still be conflict if the attorneys disagree.
  • By majority, so that (for example) you might appoint three attorneys and say that any two of them are able to make a decision together.
  • Successively, so that only one attorney acts at any time, but if the first-named attorney is unable to act for any reason then you have a back-up attorney who can take their place.

What decisions can an attorney make?

There are some legal limitations on an attorney’s power: for example, they cannot make a Will for you, vote on your behalf, or consent to particular medical treatment such as tissue donation. Apart from these limitations, your attorney will have very broad powers to make decisions for you.

The enduring power of attorney document can be drafted to give attorneys particular powers that they would not otherwise have (e.g. the power to make gifts on your behalf). If you run a business or have other more complex circumstances it may be wise to give your attorneys specific powers to reflect the types of decisions they may need to make for you.

It is also possible to limit your attorney’s power in particular areas, or to specify that the attorneys must work together in a certain way for more serious or complex decisions. For example, you could appoint your attorneys to act jointly in any sale of your family home, but to act severally in all other financial matters.

When can my attorney act?

For personal and health matters, your attorney can only act during a time when you do not have the capacity to make these types of decisions for yourself.

For financial matters, you have the option of choosing whether you want your attorney’s power to begin immediately, at some particular time in the future, or only if you lose the capacity to make financial decisions for yourself.

A financial attorney’s power can begin at different times for different attorneys. For example, a person may wish their spouse to be able to act immediately as financial attorney, but wish to appoint their adult children to act as backup attorneys only if neither they nor their spouse are capable of acting.

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