A Power of Attorney is a legal document where one person can give another person authority to make personal and financial decisions on their behalf.
This article offers a high-level overview of the document itself and how it works. As there are a lot of misconceptions about the purpose of a Power of Attorney (POA) and who it’s designed to assist, this piece will also explore some of the more common myths.
At the end of the day, the most important thing is to ensure you have a POA that is right for you and your individual set of circumstances.
What is a Power of Attorney and what does it mean?
A POA is an incredibly powerful legal document that allows someone else to stand in your shoes and make decisions as if they were you.
Depending on the terms of your document, an attorney could sell your house, buy you a new house, deal with your bank account or even make health decisions for you.
When granting a POA, there are many relevant considerations. For example, you can appoint more than one attorney and, if you do, you will be required to decide how they make decisions (e.g. unanimously). In addition, you can put conditions on what your attorneys are able to do, and even decide when the power of attorney becomes active – many people don’t want the power of attorney to start until the time they can’t legally make decisions for themselves.
Who should be my attorney
The best piece of advice I can offer to anyone considering granting a POA is to ensure you appoint someone you trust. This may sound obvious, but you would be surprised by the number of people who appoint a person because of their role in the family (e.g. the oldest son).
While in most cases, that might be fine…the risk of getting it wrong is simply not worth the potential consequences.
What if I am an attorney?
Similarly, taking on the role of attorney is not to be overlooked. Because of the potential impact, this important role carries with it serious legal responsibilities and consequences.
Also, once an attorney accepts their appointment it can be very hard to just walk away in the future. For example, once a principal has lost mental capacity, the only way to be excused from acting as their attorney is to get an order from a Tribunal.
Addressing the myths
The following list is some of the ‘myths’ about powers and attorneys and how they work.
MYTH 1: You can make a POA anytime.
FALSE. Someone can only sign a POA (or any legal document, for that matter) if they are legally competent to do so. So often, cognitive decline can occur without us noticing, and it is always better to get organised in advanced.
MYTH 2: Using a free one from the internet is no problem.
FALSE. A document as important as a POA should be created specifically and uniquely for you and your unique circumstances. Also, documents that are not drafted clearly are open to legal challenge.
MYTH 3: Your attorney can do what they like with your estate.
FALSE. Attorneys must comply with very stringent legal obligations. Generally, if their actions are not in the best interests of you then they will usually be found to be unlawful.
MYTH 4: There is one standard document for all POAs.
FALSE. You should receive legal advice as to which POA suits your specific situation. For example, in Queensland, there are General Powers of Attorney and Enduring Powers of Attorney. POAs also come in long and short form. Also, some health matters are covered by Advanced Health Care Directives.
MYTH 5: An enduring Power of Attorney survives death.
FALSE. All POAs terminate on death – no matter which form was signed.
MYTH 6: I can't find my POA, but it's okay because I signed it.
FALSE. While it doesn’t matter when it was signed, it does matter where the physical document is and if it is registered.
If you are exercising a POA, you may be asked to produce the original, an original certified document or even register the original with the Titles Office. If you can’t locate the original document, this could make things very difficult and the safest course of action is to sign a new document.
Once people learn what the document is, how it works and some of the myths – they might think it sounds too difficult. However, granting a POA is actually quite a simple, quick and affordable process.
No matter what stage of life you are at, putting a properly considered and drafted POA in place now will undoubtedly save you and your family significant inconvenience, cost and frustration in the future.
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