Power of Attorney and Succession Planning

A Power of Attorney is a legal document that allows you to appoint someone to make important lifestyle, medical or financial decisions on your behalf. Any decision made by an attorney will have the same legally binding effect as if you had made that decision yourself.

There are two different types of Power of Attorney:

• General – Gives the Attorney authority to make decisions for a specific reason and/or for a specific period of time. If you lose capacity, the document ceases to be effective. A general power of attorney is usually made when a person is unavailable for a period of time and wants someone to make financial decisions for them during that period. For example, when someone travels overseas and wants to give someone the authority to make decisions regarding their property and finances while they are away.

• Enduring – The Attorney continues to have authority to act on your behalf if you lose the capacity to manage your own affairs. The person appointed can make decisions relating to financial matters (including legal matters), personal matters, such as where the person lives or both.

What to Consider When Appointing an Attorney?
The most important thing is to choose someone you trust and who shares your beliefs. People often choose their partner, a child or a sibling to be their Attorney, but it can be anyone you like.
Your Attorney does not need to be related to you, and they do not need any specific experience or qualifications. They only need to be someone you trust implicitly and who will act in the manner you want them to.

Making someone your Attorney under Power is a big responsibility for them, so make sure you discuss it with the person you choose. Make sure they understand your wishes, preferences, and beliefs ahead of time and that they are comfortable making decisions on your behalf.
You also need to consider that ideally you should have at least two Attorneys. One as a primary and one as a backup.

Other Key Information to Note:
1. You still have power to act – Appointing someone to act on your behalf does not prevent you from acting on your own behalf. If you still have the capacity to make your own decisions, then it is important to recognize that you still have the right to do so. A power of attorney does not remove your power to act, it just authorizes someone else to also act under the limitations that you have placed. It is not the same as a conservatorship, where a court removes your power to act and places that power in the hands of another.

2. Power of Attorney revocable – A power of attorney can be revoked or amended. As long as you have the capacity to make appropriate legal decisions on your own behalf, then you have the right to make changes to your power of attorney document. If you do not believe that the document is in keeping with your wishes, then you should certainly consult with an attorney about how to get the document changed to reflect those wishes.

3. A Will is different to Power of Attorney – A Will has legal force after your death. A power of attorney is for your financial affairs while you are alive. When you die, your power of attorney (whether general or enduring) ceases automatically. That is why it is important to have both an enduring power of attorney and a Will.

If you would like to discuss or make a power of attorney, simply email us at info@straitslawyers.com or call at 08 8410 9069 to arrange an appointment.

Alternatively, if you would like to prepare a Will, Straits Lawyers are now offering an online package for Advance Care Directives and Wills. Simply purchase our package via this link: https://straits-lawyers.square.site/product/will-and-advance-care-directive-package-/13

Please note that this article does not constitute legal advice.