Power of Attorney
What is a Power of Attorney?
A Power of Attorney is a document
which authorises another person to deal
with many of your legal and financial
affairs.
A Power of Attorney can be just as
important as your Will. Your Power of
Attorney operates while you are alive but
ceases on your death, when your Will
takes over.
A Power of Attorney is a document
signed by you giving another person
authority to act as your agent when you
need someone to look after your affairs.
Types of Powers of Attorney
There are basically two types of Powers
of Attorney.
1. General Power of Attorney
This allows someone to handle
your affairs for you when you are
still mentally and physically
capable, but for some reason do
not desire to do so. For
instances, if you go overseas. A
general Power of Attorney will
cease if you become mentally
incapacitated.
2. Enduring Power of Attorney
This document enables someone
to act on your behalf, regardless
of whether or not you become
mentally incapacitated after the
Power of Attorney is granted.
As a safeguard you can build restrictions
into your Power of Attorney. For
instances you might place a restriction in
it that your attorney may not sell or
dispose of your real estate. You might
also place a restriction requiring that a
medical certificate be obtained, certifying
your incapacity, before an Enduring Power of
Attorney can be used. The responsibility you give to someone
to handle your affairs is a significant one
and you should only give your Power of
Attorney to somebody you trust.
Although a Power of Attorney does not
grant the donee power to act against
your wishes there is a danger of the
power being used against your interest.
It is important that you completely
understand the meaning and
implications of a Power of Attorney
before you sign it. If you are unsure
about the person you wish to appoint as
your attorney or you do not think they
would be capable of handling all of your
affairs, you may wish to appoint more
than one attorney and stipulate that they
act jointly, that is they both must sign
any documents.
A person appointed under an Enduring
Power of Attorney has particular
responsibilities. He or she must act at
all times with reasonable diligence and
keep accurate records of all
transactions. If you become mentally
incapacitated you cannot revoke the
Power of Attorney and the person
appointed can only renounce the Power
with the permission of the Supreme
Court.
What happens if you don’t have a
Power of Attorney?
If you don’t have an Enduring Power of Attorney
and become mentally incapable of
handling your own affairs there are two
options:
1. Firstly, the South Australian Civil and Administrative Tribunal can appoint
an administrator. The
administrator may be a suitable
relative or friend or Public
Trustee. If Public Trustee is
appointed a commission is
charged to act as your
administrator.
2. Secondly, the Supreme Court can
appoint a Manager of your affairs
pursuant to the Aged and Infirm
Persons Property Act. The Court
can appoint a suitable relative or
friend or Public Trustee.
Making a Power of Attorney while you
are of sound mind will avoid the expense
and complications of the above
procedures. A solicitor can advise you
in relation to the granting of a Power of
Attorney, help you to draft the
appropriate documentation and make
sure that it represents your interests.
There are also Advance Care Directive
Forms which relate to medical welfare
and lifestyle matters as distinct from
financial matters. These are not dealt
with in this brochure.
How do you get a Power of Attorney?
If you would like a Power of Attorney
prepared for you or would like to discuss
your particular concerns with a lawyer
telephone the Law Society for a referral
to lawyers practising in this area.
Find a lawyer
You can find one by calling the Law
Society of South Australia on
(08) 8229
0200 or access the
Law Society’s Referral Service