Powers of Attorney

In addition to making a Will, we recommend that you also consider making Enduring Powers of Attorney (both Financial and Personal, and Medical).  Both of these legal documents give powers to particular people to act on your behalf when you no longer have the legal capacity to make financial, personal or medical decisions or to manage your own affairs, perhaps due to illness, accident, or old age.  These documents are vitally important if you are living alone.

There are four main Power of Attorney documents:

  1. A non-enduring Power of Attorney (General);
  2. An Enduring Power of Attorney (Financial and Personal);
  3. An Enduring Power of Attorney (Medical);
  4. A Company Attorney which appoints an Attorney to act on behalf of a Company.

The four Powers of Attorney have different functions.  Except for the Company Power, they derive from Victorian legislation for use within Victoria. However, they may be accepted in other states in Australia, provided they have been validly prepared.

The Enduring Power of Attorney (Financial and Personal) gives power to a designated person or persons to manage your financial (and legal) affairs and to make decisions about your living arrangements.

The Enduring Power of Attorney (Medical) gives power to a designated person to make medical decisions for you, and to consent to or refuse medical treatment when you are unable to make these decisions for yourself. It is always better to be prepared when unexpected accidents or illnesses or just old age diminishes your decision making power.

To appoint someone as your attorney you must:

  1. be 18 years of age or over; and
  2. have legal capacity to make that appointment.

The issue of legal capacity is complex but in making an appointment for someone to be your attorney you must be able to understand the nature of the power the attorney will have, what types of decisions/transactions they will be able to make, when and how they will exercise that power, what effects their power will have on you and how to revoke or change the power in the future.

The law assumes you have capacity but sometimes it is best to have a medical evidence to support of the fact that you have the ability to understand the nature and effect of the Power of Attorney and the fact that you have decision making capacity. The Power of Attorney Act 2014 provides a precise definition of decision making capacity.

The duties and obligations of an attorney are governed by law.

The main ones are;

  1. to act in your best interests;
  2. to act honestly, diligently and in good faith;
  3. to exercise reasonable skill and care;
  4. not use the position for profit;
  5. to avoid acting where there is or may be a conflict of interest unless authorised by the document;
  6. not disclose confidential information gained as the attorney under the power unless authorised by the power or by law; and
  7. to keep accurate records of transactions and accounts.

Determining who is to be your attorney is an important issue. An Attorney can be a family member, friend or acquaintance.  Whoever you choose must be someone you can trust completely to make decisions for you which are in your best interests.  They too must have capacity.

At Hutchinson Legal, we can assist you by explaining, preparing and witnessing these documents and we can help to clarify the best person to whom you can give these powers. We would be pleased to talk with you about how these documents can be drafted to best suit your needs.

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Grant Hutchinson

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