Do I need Powers of Attorney, and if so, what kind?

Wills, Estates & Succession Planning 12 June 2020

Preparing Enduring Powers of Attorney and Appointments of Medical Treatment Decision Makers can make it simple for you to appoint loved ones or trusted friends to make financial, personal and medical decisions on your behalf.

What decisions can an Attorney make?

There are two primary types of Enduring Powers of Attorney: Financial and Personal.

  1. A Financial Power of Attorney permits the management of your financial affairs, including (but not limited to) paying your living expenses (including rent, food, utility bills and entertainment), managing your investments and undertaking real estate transactions on your behalf.
  2. A Personal Power of Attorney permits decisions to be made about your personal affairs, including (but not limited to) with whom you live, where you live and daily lifestyle decisions such as diet and clothing.

How Many Attorneys?

You may have one attorney or multiple attorneys. If there is more than one, they could be appointed jointly (which means all must agree), jointly and severally (which means any one could act) or jointly by majority (e.g. two out of three act).

Corporate Powers of Attorney

If you have a company of which you are the sole director it is important you appoint one or more persons to be the attorney to act in relation to the affairs of the company if you are unable to make decisions either through absence or illness.

When can these powers be used?

These types of Powers of Attorney are ‘enduring’ because the authority will continue after you lose the capacity to make your own decisions.

People normally choose to have the power only come into effect after they lose decision making capacity, but you may elect to have the powers commence immediately, or once a medical practitioner declares in writing that you no longer have decision making capacity.

You may choose to have the power commence immediately upon signing the document or,  alternatively, make it conditional on a medical practitioner certifying in writing you  do not have either physical or mental capacity to make your own decisions.

What about decisions relating to my health and medical treatment?

The Medical Treatment Planning and Decisions Act 2016 allows for the Appointment of Medical Treatment Decision Makers, who will be empowered to make medical treatment decisions for you if you are unable to make decisions about treatment yourself (either temporarily or permanently).  You can appoint more than one person to be your Medical Treatment Decision Maker, but the appointment on a preferential basis and only one person can act at a time.

The types of decisions that your Medical Treatment Decision Maker is authorised to make include continuing or ceasing existing medical treatment, consenting to new medical treatment or emergency medical treatment, and includes dental treatment as well as mental health treatment.

It is important that the person or persons whom you appoint to make medical treatment decisions on your behalf have a clear understanding of your preferences and values.  Having discussions about medical treatment, and in particular end of life care, may be challenging and confronting for some, but may help to reduce the stress placed on your Medical Treatment Decision Makers when the time comes.

I’m young and healthy, do I really need Powers of Attorney?

Young people also often fail to turn their minds to who would make important financial, personal and medical decisions for them if they were incapacitated or unable to make decisions.  You don’t need to be sick or over a certain age to benefit from Powers of Attorney – you may be spending time overseas and need someone to administer your affairs back home in Australia, or you could be time poor and want to appoint your spouse to assist with ‘life administration’.

Enduring Powers of Attorney make it simple for your desired Attorney (or Attorneys) to make these decisions on your behalf.  For example, if you were involved in an accident and had to spend some time in hospital, your Financial Attorney could still meet your outgoing expenses by making payments from your accounts and your Personal Attorney could decide if you needed to move into assisted accommodation.

What else should I know?

Powers of Attorney are only valid while you are alive.  After your death, these documents become invalid and your affairs are administered in accordance with the terms of your Will or the laws of intestacy.

Life is full of the unexpected, and whilst we would like to be able to predict the future to know whether or not you would ever need a Power of Attorney or Appointment of Medical Treatment Decision Makers, it is impossible to know.

Enduring Powers of Attorney and Appointments of Medical Treatment Decision Makers can play a very important part in your ongoing care, should you unexpectedly be incapacitated or lose your decision making capacity.

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