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Power of Attorney Refresher - Staying on top of the documents

There is a lot of focus on arrangements that you can make to ensure your wishes are dealt with after you have passed away, such as making a will. However, an equally consequential decision can be who you wish to appoint as your substituted decision-maker in respect of various matters, if you were to lose capacity. 

The various jurisdictions in Australia permit a person to appoint a substitute decision-maker in respect of financial, medical, personal/guardianship and end of life type decisions. This article provides an overview of the power of attorney documents available through Cleardocs which facilitate and formalise such appointments in the jurisdictions of New South Wales, Victoria, Queensland and Western Australia. 

Laura Mckenzie

What is the effect of an enduring power of attorney?

An enduring power of attorney allows someone to manage the affairs of the "principal" or the "appointor" for them. The description of the roles varies by jurisdiction. However, these affairs fall within the following categories:

  1. personal/guardianshipdecisions such as whether the principal can work, where the principal lives and with whom, daily living matters like diet and dress and who the principal is to associate with;
  2. financial decisions such as paying bills, making investments or buying and selling property;
  3. medical decisions such as choices on medical treatment and access to healthcare; and
  4. end of life directives for decisions to refuse medical treatment such as to not to be put on life support or not to have another medical intervention that may prolong the principal's life.

When do the attorney's powers commence?

The Cleardocs enduring power of attorney products commence at various points in time (and will depend on the relevant jurisdiction). However, these are typically:

  • when the document is signed (i.e. even if someone retains decision-making capacity);
  • when the principal loses decision-making capacity; or
  • on a certain date and remain valid until the principal’s death. 

Once the power has commenced, the attorney can operate:

  • in a ‘temporary’ way, such as where the principal is unconscious as the result of an accident or illness; or 
  • ‘permanently’, for example if they incur a brain injury or dementia. 
     

How does an enduring power of attorney differ from a general power of attorney?

An ‘enduring’ power differs from a ‘general’ power of attorney which relies on the continued decision-making capacity of the principal, in order for the attorney’s powers to remain valid. 

Are the forms and witnessing requirements the same across jurisdictions?

The prescribed form and witnessing requirements to create a power of attorney vary by jurisdiction, and are catered for in the Cleardocs products for the relevant State. 

However, each state, aside from Western Australia, will recognise an out-of-state power of attorney. In Western Australia, the attorney must apply to the WA State Administrative Tribunal for an order for an out-of-state Power of Attorney to be recognised. 

What documents generally record the appointment of an attorney?

The Cleardocs Power of Attorney products will come with a combination of the following documents: 

  • the Power of Attorney
  • a Principal'ss Declaration
  • Statement of Acceptance of the Attorney
  • Statement of Alterative Attorney so that if the attorney dies or becomes incapacitated, the Power of Attorney document can continue under the alternative attorney
  • Witness Certificates to meet the requirements under each jurisdiction 
  • Information outlining duties of the attorney
  • Establishment Kit outlining what to do next
     

What are the fundamental obligations of an attorney? 

When considering who you wish to appoint, it is helpful for you to understand what their role entails (and the powers they have), as well as the obligations they have to you and things they must not do. These powers and obligations vary, depending on the role to which they are being appointed. 

However, key considerations include the following: 

An attorney must:

  • act in the principal's best interests;
  • act honestly, diligently and in good faith;
  • exercise reasonable skill and care;
  • try to make the same decisions that the principal would have made in the circumstances; and 
  • avoid conflicts of interest or using the position for profit.

For financial powers, the attorney is also:

  • required to keep accurate records of dealings and transactions; and 
  • keep the principal’s property and money separate from their own. 

An attorney must not: 

  • exercise any trusts, powers or discretions vested in the appointor;
  • disclose confidential information;
  • perform any non-delegable duties of the appointor such as the role of company director;
  • make a will for the appointor;
  • swear an affidavit in the name of an appointor; and
  • pass on their powers or duties to another person.

A summary of the products that are currently (or will shortly be available) are set out below: 

    

  NSW VIC WA QLD
Financial Power of Attorney (Financial) NSW Enduring Power of Attorney (Personal and/or Financial) VIC Enduring Power of Attorney (Financial) WA Enduring Power of Attorney (QLD)
Personal Appointment of Enduring Guardian NSW Enduring  Power of Attorney (Personal and/or Financial) VIC (Same as above) Enduring Power of Guardianship WA  Enduring Power of Attorney (QLD)
Medical Appointment of Enduring Guardian NSW Enduring  Power of Attorney (Personal and/or Financial) VIC (Same as above) Enduring Power of Guardianship WA  Enduring Power of Attorney (QLD)
End of life decisions Advance Health Directive (Medical) NSW   Enduring Power of Guardianship WA  available Enduring Power of Attorney (QLD)


        

Concluding remarks

Ensuring that you have an attorney appointed as your substitute decision-maker in respect of your financial, personal/guardianship, medical and end of life affairs, provides you and your loved ones with peace of mind on very important issues.
In the case of enduring powers of attorney, properly prepared documents ensure that your wishes and directions are appropriately captured, and can be acted upon in the event you lose capacity, as well as providing for important decisions about you and your care to be taken by people you trust.
In the case of general powers of attorney, continued decision-making is provided for (and, in some cases, efficient execution of documents and completion of transactions) even during short or prolonged periods of absence. 

 

More information from Maddocks

For more information, contact Maddocks on (03) 9288 0555 and ask to speak to a member of the Commercial team.

Order related document packages

 

 

Lawyer in Profile

Julian Smith
Julian Smith
Partner
+61 3 9258 3864
julian.smith@maddocks.com.au

Qualifications: BA, LLB, Monash University, LLM, University of Melbourne

Julian is a Partner in Maddocks Commercial team. He advises a diverse range of clients across the Australian commercial and financial services landscape.

Julian's corporate practice spans various sectors, including financial services, professional services, and family-owned enterprises. He advises on:

  • capital raising,
  • disclosures,
  • restructures,
  • mergers and acquisitions,
  • corporate governance,
  • directors' duties, and
  • trusts, corporations, and securities law.

Julianís financial services practice involves advising financial market participants on the entire financial services lifecycle including fund structuring, management options, and compliance with regulatory requirements.

Julian also offers guidance on alternative and disruptive financial services businesses, such as online foreign exchanges, internal markets, and management rights schemes.

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