A Power of Attorney is a power, which allows someone you trust to act on your behalf.
There are four types of Power of Attorney:
General Power (Non-Enduring):- This power is usually given to a trusted person for a limited purpose, such as to act while you are overseas, to sell your house for a certain amount or while you are in hospital and do not wish to be concerned with the usual matters such as operating a bank account. This power ceases to operate immediately that the person giving the power (the principal) becomes bankrupt, becomes mentally or physically incapable of running his/her affairs or dies.
Enduring Power (Financial & Personal):- This power given to a trusted person (attorney) continues even if the principal becomes mentally or physically incapable of running their affairs. This power is very extensive and therefore the principal must demonstrate they understand the extent of the power and accordingly must be able to answer a range of questions concerning their understanding of the effects of granting an enduring power. This power is given in many cases where a person is elderly and wants their children or a trusted person to make decisions regarding their welfare and finances when they are no longer mentally or physically capable of doing so. This document covers both the financial matters and personal matters such as where to live, who to see and where to work.
If an Enduring Power is not in place and a person becomes mentally incapable of handling their affairs then a family member or trusted person must apply to VCAT for an Administration and/or Guardianship Order before someone can act on their behalf. Once a person becomes mentally incapable of running their affairs they are also incapable of appointing an attorney.
Note: a Guardianship Order does not deal with financial matters, an Administration Order does. Similarly a financial power authorises the attorney to act in the principal’s place and do all things that the principal could lawfully do.
Supportive Powers of Attorney:- This document allows a person to appoint an attorney to support the person to make and give effect to some or all of their own decisions. The supportive attorney does not make decisions for the person but can assist the person by collecting or obtaining information and documents for that person.
Medical Enduring Powers:- As the name suggests this power limits the attorney to acting in regard to specific matters relating to medical treatment, including the power to refuse medical treatment if you become incompetent. This power has to be used in accordance with strict guidelines.
In all of the above types of Power of Attorney there are rules as to the form of the document and the method of appointing the attorney. A Power of Attorney must be in the form of a written document. The Power of Attorney must be signed by the principal, in front of two independent witnesses, one of whom must be a solicitor or a medical practioner. The attorney must acknowledge the appointment by signing the document and finally a certification by a solicitor stating that the principal understands the legal implications of giving such a power must be included at the foot of the document.
We will be pleased to advise you with regard to your individual situation and can assist you in deciding when and if you should appoint an attorney.