A Power of Attorney is a written document which a person, the “donor”, grants to an “attorney”, being a person authorised by this document to deal with the property of the donor at the donor’s direction.
The power operates only in relation to property.
The donor is able to impose limitations of any description upon this power though can make the power without qualification or limitations. The second of these, without qualification or limitation, is usual in the case where it is intended that there be a continuing or enduring power or attorney.
Whilst the power operates and whilst the donor is deemed to be of a sound mind, the attorney is only able to operate upon direction and is not authorised to act independently without reference to the donor as that may give rise to allegations of improper dealing and possibly fraud. It is important that an attorney does not exceed this authority.
A Power of Attorney ceases upon the death of the donor but is also revocable during the life of the donor. This is done by written notice of revocation addressed and sent to the person given the power of attorney.
Enduring Powers of Attorney
As well as this power being for a limited purpose or for a limited time the power may be drawn as an “Enduring Power of Attorney”.
Where the appointment is made and the donor is said to be of sound mind that person is able to provide for circumstances where they subsequently lose capacity after executing the document and allow for the power to continue to operate.
In this instance the attorney is authorised to act independently though again only in the interests of the donor and with some limited exceptions not to the benefit of the attorney but only to the benefit of the donor.
In the case of an Enduring Power of Attorney, the attorney must indicate their acceptance by signing the document.
A Power of Attorney should be registered at the Department of Lands whereupon a registration fee is payable, which fee varies, but as at 1 July 2012 is $98.00. Registration is necessary if the attorney is to deal with real estate and is advisable in relation to dealing with financial institutions that prefer to see that the document has been properly registered and put into effect.
In addition to appointing an attorney under power to deal with property, a person may and indeed should also consider the appointment of an enduring guardian.
A guardian deals with matters involving the personal decisions around the person making the appointment and can involve, but is not necessarily limited to, matters such as deciding where the person making the appointment might live, what health care they might receive, what other kinds of personal services they might receive and consent to carrying out medical or dental treatment.
A guardian may be an individual, a relative or friend of the appointor and can be the same person as is appointed under a Power of Attorney to deal with property.
In the alternative an application can be made and in circumstances has to be made where the appointor lacks capacity to the Guardianship Tribunal to appoint an appropriate guardian and that may either be an individual or the NSW Trustee & Guardian which can exercise the roles of both guardian as to personal affairs and also be the attorney in relation to financial and property matters at the same time.
In all instances it is better to anticipate. It is better to consider who you may appoint if you wish and who you would wish to have a controlling interest or authority if you have some concerns about your affairs being administered by an unfamiliar or official organisation.
The appointment of a personal guardian simply requires that you choose the appropriate person, that they are aware of their duties as they will have to sign and acknowledge acceptance of the role and that they are aware of the nature of their task.
A guardian may operate in conjunction with yourself and at your direction as to your wishes and of course can continue that role if it is deemed to be the case that you have suffered a loss of capacity of mind such that you are not able to make decisions for yourself.
An appointment of Enduring Guardian ceases upon the death of the appointor.
This appointment can be attended to at the same time as the preparation of a Will and a Power of Attorney.
It is important that both the donor and the attorney understand their rights and obligations and you may contact us to discuss these matters in more detail.
Advanced Care Directive
In NSW this is an informal document and is colloquially known as a “Living Will”. This is an expression of wishes as to termination of health treatment or medical treatment.
Whilst these are not of any binding or formal effect in NSW it is something of a comfort note to relatives and friends as an expression of wishes.
These ACD’s are valid and indeed binding in some countries. In some states in Australia they have more force and effect than in the state of NSW but it is a document that should be considered in conjunction with the making of a Will, a Power of Attorney and the appointment of a guardian, despite the fact that it carries less authority than those other documents.