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A Power of Attorney is a legal document that gives another person or organisation the power to deal with your assets and financial affairs while you are still alive. Granting a Power of Attorney to an individual, or an organisation, is a very serious decision.
Who Should I Choose as the Attorney?
Who you choose as your attorney is up to you. It may be your spouse or de facto partner, another family member or close friend, an accountant, lawyer or a trustee company.
The person you ask to look after your financial and legal affairs must be responsible, knowledgeable and experienced. More importantly, you must be able to trust them to ensure they keep your best interests at heart.
What types of Power of Attorney are available?
There are two types of Powers of Attorney, namely:
• A General Power of Attorney. This is an arrangement which will lapse on the earlier of the end date (if one is noted in the document) or if you lose mental capacity.
• An Enduring Power of Attorney. This is a permanent arrangement that will remain effective even if you suffer loss of capacity due to illness or unsoundness of mind.
An enduring Power of Attorney and a General Power of Attorney can be tailored to set whatever limitations or conditions on your attorney that you choose.
Can a person with a decision-making disability make an enduring power of attorney?
To be able to make an enduring power of attorney the adult must have full legal capacity. What this means is that the person must know and understand:
• the nature and extent of their own estate (land, property and financial assets)
• that an enduring power of attorney will give the attorney complete authority to deal with all aspects of their property and financial affairs (provided that such dealings are in the interests of the person making the enduring power of attorney).
Adults with impaired decision-making abilities, such as those with a psychiatric condition, dementia, an intellectual disability or an acquired brain injury may not be able to execute an enduring power of attorney.
In the case of people with a mental illness, the issue of capacity can be complex particularly if their ability to make reasoned decisions fluctuates with the severity of their illness.
Any doubt about the person’s capacity to make the document could result in the State Administrative Tribunal finding the enduring power of attorney has not been properly made, and as a consequence it could be revoked.
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.
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