Power of Attorney

• Are you concerned about what happens if you have an accident and cannot manage your financial affairs?
• Are you concerned about what happens if you have dementia and cannot manage your financial affairs?
• Who do you trust to make financial decisions for you?
• What is a Power of Attorney?
• What powers can I give to my Attorney?
• Can I cancel my Power of Attorney?

If you have any concerns about these issues please read the attached information which discusses Powers of Attorney.

Introduction

Sometimes we are left in the position where we are not available to make our own financial decisions. This can occur if we are overseas for some time or are simply too busy to manage our financial affairs. However, in some circumstances we cannot make our own financial decisions even if we wanted to do. This is usually due to an accident or if we suffer from dementia. As a community we are increasingly becoming aware of family or friends who have Alzheimer’s. This is a natural progression as medical science is keeping us alive for much longer.

In order to provide for these possibilities you should arrange a Power of Attorney.

If significant financial decisions need to be made for us then you should arrange a Power of Attorney.

We all try to plan our working lives, plan our children’s education and plan our retirement as best we can. With the growing impact of dementia it is becoming increasingly important to plan for the situation where we might not be able to make our own financial decisions.

We all know the benefits of having a will to ensure our intentions as to what will happen with our assets after we die. However who will look after our financial affairs whilst we are alive if we are in an accident or suffer from dementia.

What is a Power of Attorney?

A Power of Attorney is a legal document in which you appoint a person to act for you to do certain financial things on your behalf. Usually your attorney can open and close bank accounts, withdraw and deposit funds to your account, pay all of your bills for you from your account, arrange to insure your personal assets, deal with Centrelink on your behalf and buy, sell, mortgage or lease your house.

Making someone your attorney means that you can still operate your bank account, make investments and do anything else you wish to do financially.

Who should I appoint?

Probably the most important decision you need to make is whom do you appoint as your attorney. It should be someone that you trust absolutely. Your attorney is really a trustee for your finances. It should therefore be someone that you trust totally.

Types of Powers of Attorney

1. General Power of Attorney – this type only operates until you die, cancel the appointment or if you suffer loss of capacity. As most people want their attorney to act in their interests in the event that they suffer loss of capacity it is usually rare to request a general Power of Attorney.
2. Enduring Power of Attorney – this type is far more common and operates even after your suffer loss of capacity.

Advantages of a Power of Attorney?

The appointment of an attorney has the advantage of ensuring that someone who you trust can act in your interests. If you have not appointed an attorney there can potentially be family disagreements about financial decisions for you. Further, if you have not appointed an Attorney your affairs are frozen and it will be necessary for someone to apply to the Guardianship Tribunal for a Financial Management Order. The making of Financial Management Orders means that all or part of your financial affairs will be subject to management under the Protective Estates Act 1983.

An example of where conflict may arise would be where some family members are more concerned about their inheritance rather than spending money on a more comfortable lifestyle for you.

What if there are Disputes concerning Financial Decisions?

If there are disagreements then a family member or another person interested in your wellbeing may seek appropriate orders from the Guardianship Tribunal or the Supreme Court. If possible this should be avoided and having a Power of Attorney in place will assist.

When considering whether or not a financial management order shall be made, the Guardianship Tribunal must have regard as to your capability to manage your own affairs and is satisfied that:

1. you are not capable of managing your affairs; and
2. there is a need for another person to manage your affairs, and
3. it is in your best interests that the order be made.

If the Guardianship Tribunal does make a financial management order the Tribunal may either appoint a suitable person to handle your financial affairs or alternatively appoint the Protective Commissioner to handle your financial affairs.

Potentially, the Guardianship Tribunal may or may not appoint a person that you would have preferred to act as your attorney.

How many Attorneys can you appoint?

As many as you wish. If you appoint more than one attorney, they are appointed to act either jointly, severally or jointly and severally.

Joint attorneys must all act together and cannot act separately. If you make a joint appointment you should be aware that a joint appointment will terminate if the appointment of one of the attorneys is cancelled or any one of the attorneys disclaims, dies, becomes bankrupt or physically or mentally incapable of acting as an attorney. We can provide in the Power of Attorney document that if this happens you then make a new appointment of the other Attorney/s, effective from when the appointment of one of them ends.

Joint and several attorneys can all act together but can also act separately if they wish. In this case, if one of the attorneys is temporally unavailable, disclaims, dies, and becomes bankrupt or physically or mentally incapable of acting as an attorney then the Power of Attorney is not terminated.

It is therefore usual that you would appoint your attorneys to act jointly and severally.

When does the Power of Attorney operate?

You have several choices. A General Power of Attorney can operate:

1. Immediately;
2. When your Attorney accepts your appointment;
3. During a set period;
4. When your Attorney considers you require assistance; or
5. Other circumstances which you will need to discuss with your lawyer.

However in the case of an Enduring Power of Attorney it will not operate until your Attorney has accepted the appointment by signing the power of attorney.

If you do not wish your attorney to exercise the power immediately you can ask your lawyer not to release the power of attorney to your attorney until requested to do so or you lose capacity.

What Powers may be exercised by an Attorney?

The Powers of Attorney Act sets out the powers that can be exercised by an attorney. Your Attorney has the power to act when authorised by you and accepted by your attorney or when you lose your mental capacity or at some other time you state in your Power of Attorney.

You are entitled to restrict the powers given to your attorney. For example you might state that your attorney’s powers are restricted to the sale of your house and the distribution of the sale proceeds of your house.

However generally your attorney is authorised to do anything you are lawfully authorised to do. In effect this means that your attorney must exercise their powers to protect and benefit your interests.

The powers and responsibilities that you normally give to your attorney include:

1. protect your interests by keeping their and your assets separate
2. maintain adequate accounting records of your dealings with your assets
3. avoid any conflict between their duty to you and their own interests
4. obey your instructions while you have capacity
5. not make gifts or provide a benefit to themselves or someone else unless specifically stated by your Power of Attorney.

If the Power of Attorney states that gifts may be made they must be reasonable in the circumstances given the amount of your assets. There may be circumstances where you wish to authorise your attorney to use funds to give reasonable gifts such as are given seasonally or occasionally to close friends or relatives, and to make donations of a nature that you would normally make. You might also consider it reasonable to give benefits to your attorney, or other persons, for reasonable living expenses and medical expenses.

Please also remember that an attorney has no power to make decisions in relation to your personal affairs. This would require an Enduring Guardian.

What decisions can your Attorney NOT make?

Your attorney cannot:

1 Make a will for you
2 Vote for you
3 Consent to marriage
4 Manage your personal and lifestyle affairs
5 Consent to medical treatment

Can I Cancel the Power of Attorney?

Yes, however it must be in writing. You must advise your attorney in writing that the Power of Attorney has been cancelled. If your Power of Attorney has been registered it is advisable to register a form cancelling or revoking your Power of Attorney.

You must have the legal capacity at that time to cancel the appointment of your attorney.

Do I need to register my Power of Attorney?

It is only necessary to register a Power of Attorney at Land and Property Information NSW if it is to be used to sign a legal document affecting land. To save cost it may be wise to only register your Power of Attorney if it becomes necessary to sell, lease or mortgage your property.

Relationship between Power of Attorney and Enduring Guardian

An Enduring guardianship allows you to appoint a person or persons to be your guardian in the event that you suffer from a disability and are incapable of managing your person. The Guardian can consent to medical and dental treatment, decide where you live and decide what personal and health care services you will receive. You can also include in the Appointment of the Guardian directions as to end of life matters.

On the other hand a Power of Attorney relates to your financial affairs rather than your person.

An Enduring guardianship will only be effective if there is a need and you become incapable of managing your person. It will only operate after you suffer loss of capacity. This means that it will operate, for example, in the case that you suffer from dementia or are in a coma after an accident.

By appointing an attorney you will minimise the need of your family or carer to make an Application for a financial management order. Nonetheless, a Power of Attorney does not preclude an application by a person genuinely concerned for your financial welfare for a financial management order.

Although your Attorney and your guardian carry out different functions and aspects of your welfare, their relationship will be intimately linked because any lifestyle decisions made by your guardian will affect your financial situations and vice versa. Therefore, it may be prudent to consider the compatibility of your attorney and your proposed guardian before making an appointment.

The Next Step

The appointment of an attorney requires the preparation of a legal document by your lawyer. It must be signed by you and the people you are appointing as your attorney. The Powers of Attorney Act requires that your signature must be witnessed by a lawyer or clerk of the court.

Case Studies

1. Bill and Jane have retired and own their home. Unfortunately Bill has dementia and Jane cannot look after him any more. Bill will need to move to a nursing home. The nursing home requires payment of a large sum of money before Bill can move in. Jane decides to sell their home however discovers that she cannot sell because Bill does not have the legal capacity to sign the Contract for Sale. Jane’s only option is to make application to the Guardianship Tribunal for a financial management order so that she can sign the legal documents on behalf of her husband. A Power of Attorney would have saved all this trouble and expense.

2. Steve has recently been involved in a car accident. He will recover but will be in hospital for many months. Steve has bills to pay while he is in hospital. Fortunately Steve had income protection insurance so he can survive financially whilst he is in hospital. Steve has also organised a Power of Attorney so his sister can organise his financial affairs whilst he is in hospital.

3. Dan is overseas on a two year contract with his employer. While he is away his next door neighbour approaches Dan’s parents to ask if he will sell his house. The neighbour is offering a very good price for the house and Dan is keen to sell the house before the neighbour changes his mind. Unfortunately Dan does not have a Power of Attorney in existence. Dan can sell the house but needs to arrange a Power of Attorney urgently to enable the sale to proceed. This can be done but is very difficult and time consuming as he needs to find a solicitor in the country where he is living to explain an Australian Power of Attorney to him. This could be very difficult.

4. Sam is single, his parents have died and he is an only child. His closest friend Jimmy spent some time in gaol many years ago after being charged with fraud. Sam is badly injured at work and is in a coma. He is expected to recover but will be in hospital for many months recovering from his injuries. Jimmy makes application to the Guardianship Tribunal for a financial management order in his favour so that he can look after his friends finances until he recovers. The Guardianship Tribunal refuses to make the order because they are concerned about Jimmy’s criminal record. Instead the Guardianship Tribunal appoints the Public Trustee to make all financial decisions for Sam. In these circumstances the cost could be quite significant as the Public Trustee charges for its services and Jimmy is annoyed that his past criminal record had meant that he cannot help his friend who needs his help. If Sam had a Power of Attorney appointing Jimmy his attorney then there would have been no need for Jimmy to approach the Guardianship Tribunal or for the Public Trustee to become involved in Sam’s financial affairs.

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