Power of Attorney

Decisions, Decisions, Decisions and the Power of Attorney

In life we are often faced with decisions, some hard, some easy and some just downright difficult. But what happens when for one reason another you need someone to make decisions on your behalf? This is where the role of the Power of Attorney comes in.

What is a Power of Attorney?

A Power of Attorney is a legally binding document (“Deed”) that allows you to appoint someone as your “Attorney”. By appointing this person as your Attorney you are giving them the power to make legally binding decisions on your behalf.

There are two different types of Powers of Attorney, the General Power of Attorney and the Enduring Power of Attorney.

The General Power of Attorney

In contrast to the Enduring Power of Attorney, the general power of Attorney is a document that you would create if you wanted to allow someone else to make decisions on your behalf in specified circumstances.

Say for example, you need someone to run your business while you are overseas. By creating a General Power of Attorney you can provide someone with the power to make all of the day to day decisions that you would otherwise have been able to make. The beauty of the General Power of Attorney however, is that it doesn’t just provide your Attorney with free reign. With careful drafting you can impose certain exclusions, limitations and conditions that restrict the power available to them.

The General Power of Attorney however is limited in that the Attorney can only make decisions that you the donor would otherwise be able to make for yourself. If for some reason you became incapacitated or injured to the extent that you could not make decisions on your own behalf, the general Power of Attorney would automatically cease to operate.

The Enduring Power of Attorney

Whilst the general Power of Attorney ceases to operate if the donor loses capacity, the Enduring Power of Attorney is designed to operate in specifically these types of circumstances.

The Enduring Power of Attorney is a document that you would consider entering into when you are coming to the end of your life or at least a point in your life where you believe someone else would be better placed to take care of your assets and manage your finances for you.

Appointing an Attorney

The only real restrictions on appointing someone as your Power of attorney are that they must be over the age of 18 and of sound mind.

There are no restrictions to appointing a family member or relative even if they stand to inherit something under the terms of your Will.

There are no restrictions on appointing more than one Attorney however, if you decide to appoint more than one person you will need to decide whether you wish to appoint them jointly or severally. If you appoint your Attorneys jointly this means that in order to make any legally binding decisions both Attorneys must act together and agree on any decisions to be made prior to being able to make them. Alternatively if you decide to appoint your Attorneys joint and severally in the instance that one Attorney decides they no longer wish to fulfil the role, the remaining Attorney can continue to act alone and the validity of the deed will not impaired.

At Adelaide Family Lawyers we understand that in life there are sometimes difficult decisions we are required to make and that in certain circumstances we might need to appoint someone else to make those decisions on our behalf. If you think you might need a Power of Attorney come in and speak to one of our family law specialists about drafting a deed today.