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Powers of Attorney – Adelaide

A Power of Attorney is a document that gives a person (called either the donee, attorney or appointee) the power to act on behalf of the person or company who gives the power (called the donor, principal or appointor). Appointing a person as an attorney is giving them the authority to deal with the donor’s legal and financial affairs . It does not give the attorney the authority to deal with other personal areas of the donor’s life, such as health care, residential and accommodation arrangements, and lifestyle matters. Therefore a Power of Attorney can be just as important as your Will.

Your Power of Attorney operates while you are alive but ceases upon your death, at which time your Will takes over. A Power of Attorney is a document signed by you giving another person authority to act as your agent when you need someone to look after your affairs.

There are two different forms of powers of attorney – they have similarities but there are some important differences.

  • general power of attorney is an authority given to a donee to deal with a donor’s financial affairs. For example, it allows a donee to buy and sell things or to operate a donor’s bank account if he or she is away on holidays overseas.
  • An enduring power of attorney is a power of attorney that operates even though the donor is legally incapacitated, for example is unable to communicate after a stroke, or becomes senile. In these circumstances, a general power of attorney ceases to operate and actions taken under it after that time are invalid.

A general power of attorney and an enduring power of attorney both give an attorney authority to deal with a person’s financial affairs. However, while a general power of attorney is cancelled automatically if a person becomes legally incapacitated, an enduring power of attorney will still be effective.

Giving either power of attorney does not mean that a person loses control over their affairs. A person can still deal with whatever matters he or she chooses, while the donee can only do the things that the form allows. However, giving a power of attorney to someone who is not absolutely trustworthy is very dangerous.

A power of attorney document provides proof of the donee’s power to act on the donor’s behalf. It must be shown whenever the donee is doing something in place of the donor.

Expert legal advice provides peace of mind

Given the importance of a Power of Attorney it is highly advisable to seek out experienced and professional advice.

A Scammell & Co. Wills and Estate Planning solicitor can assist you with the preparation of your Power of Attorney – including the precise wording to adopt to give effect to your wishes, and in the signing process by acting as an authorised witness.

Scammell & Co. offers fixed-fees for standard Wills, Powers of Attorney and Advance Care Directives with discounts offered on combinations of these. Discounts are also available to seniors and concession card holders.

Scammell & Co. have 6 offices located throughout South Australia including Adelaide CBD, Port Adelaide, Walkerville, Gawler, Renmark and Tanunda. Call or email us today to speak with a highly experienced Wills and Estate Planning solicitor about your matter, or to book an appointment at an office convenient to you.

FAQs

Click on the questions below to reveal the answer:

What authority is given by a Power of Attorney document?

A Power of Attorney document gives the person, or people you choose, the authority to deal with your money, your assets, your finances and your legal affairs. The appointed Attorney can, for example, deal with Centrelink on your behalf, lodge your tax returns, operate your bank accounts, pay your bills sell your house, invest your money and use your money for your benefit.

There are different types of Power of Attorney documents, namely:

  • General Power of Attorney.
  • Enduring Power of Attorney.
  • General and Enduring Power of Attorney.

See the last part of this section headed Power of Attorney – and Advance Care Directives for more detail.

Why make an Enduring Power of Attorney?

Unexpected sickness or an accident can render a person unable to make legal or financial decisions in either the short term or long term. This can cause major difficulties for families if you have not prepared an appropriate Power of Attorney.

Are all Powers of Attorney enduring?

See explanatory notes under the heading Power of Attorney at the end of this section.

Power of Attorney information

General Power of Attorney

  • Only comes into effect for a certain period of time.
  • Your Attorney cannot act for you if you suffer a legal incapacity.

Enduring Power of Attorney

  • Only comes into effect after you have suffered a legal incapacity.
  • Your Attorney cannot act for you unless you are legally incapacitated.

General & Enduring Power of Attorney

  • Generally comes into effect once it is signed by you and the person(s) you have appointed to by your attorney(s) and remains in full force and effect after you have suffered a legal incapacity.

How many types of Powers of Attorney are there?

There are basically two types of Powers of Attorney. 

1. General Power of Attorney 
This allows someone to handle your affairs for you when you are still mentally and physically capable, but for some reason do not desire to do so. For instances, if you go overseas. A general Power of Attorney will cease if you become mentally incapacitated. 

2. Enduring Power of Attorney
This document enables someone to act on your behalf, regardless of whether or not you become mentally incapacitated after the Power of Attorney is granted.

As a safeguard you can build restrictions into your Power of Attorney. For instances you might place a restriction in it that your attorney may not sell or dispose of your real estate. You might also place a restriction requiring that a medical certificate be obtained, certifying your incapacity, before the Power of Attorney can be used. The responsibility you give to someone to handle your affairs is a significant one and you should only give your Power of Attorney to somebody you trust. Although a Power of Attorney does not grant the donee power to act against your wishes there is a danger of the power being used against your interest. 

It is important that you completely understand the meaning and implications of a Power of Attorney before you sign it. If you are unsure about the person you wish to appoint as your attorney or you do not think they would be capable of handling all of your affairs, you may wish to appoint more than one attorney and stipulate that they act jointly, that is they both must sign any documents. A person appointed under an Enduring Power of Attorney has particular responsibilities. He or she must act at all times with reasonable diligence and keep accurate records of all transactions. Once the person has accepted the Power of Attorney until he or she renounces the power, or the Power of Attorney is revoked by you or you die. If you become mentally incapacitated you cannot revoke the Power of Attorney and the person appointed can only renounce the Power with the permission of the Supreme Court.

What happens if you don’t have a Power of Attorney?

If you don’t have a Power of Attorney and become mentally incapable of handling your own affairs there are two options: 

1. Firstly, the SACAT can appoint an administrator. The administrator may be a suitable relative or friend from Public Trustee. If Public Trustee is appointed a commission is charged to act as your administrator. 

2. Secondly, the Supreme Court can appoint a Manager of your affairs pursuant to the Aged and Infirm Persons Property Act. The Court can appoint a suitable relative or friend of Public Trustee.

Making a Power of Attorney while you are of sound mind will avoid the expense and complications of the above procedures. A solicitor can advise you in relation to the granting of a Power of Attorney, help you to draft the appropriate documentation and make sure that it represents your interests. There are also Advance Care Directive Forms which relate to medical welfare and lifestyle matters as distinct from financial matters. These are not dealt with in this brochure.

Free legal advice.

If you have some questions, want some advice or want to get the process underway, contact Scammell & Co. to arrange a meeting. In many cases (not all) the first 30 minutes of your first meeting is free. This can give time to outline your matter and for us to give you preliminary advice.
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