What is Power of Attorney?
8 December 2021 in Wills and Estates Law | 4 min read | skip to FAQsA Power of Attorney (PoA) is used to enable a representative who you choose, who is known as your ‘attorney’, to make decisions regarding your finances and contracts. An Enduring Power of Attorney works on the same principle of choosing a representative or attorney. However, it varies in that it continues to be effective after a person loses mental capacity, while a general Power of Attorney document is not legally effective after a person loses mental capacity.
Why should I appoint someone as a Power of Attorney?
- You want someone to manage your financial affairs whilst you are outside of the country or have short-term medical problems
- You want someone to buy and sell property on your behalf
- You want the confidence that your financial affairs will be handled in your best interests in circumstances where you cannot take care of them yourself
What are the responsibilities of a Power of Attorney?
Power of attorney documents typically provide that someone who is appointed as your attorney must:
- Keep their assets separate from yours
- Keep records of any actions taken in relation to your financial affairs
- Avoid conflicts of interests
- Obey your instructions
- Not misappropriate your funds
- Act in your best interests
How can BSM Sydney Lawyers assist you?
Brander Smith McKnight’s expert wills and estates lawyers can assist you with the meticulous and careful drafting of legally binding and effective Power of Attorney and Enduring Power of Attorney documents. The experienced estate lawyers at BSM Sydney Lawyer can also ensure that you fully understand the implication of these documents and the responsibilities that they create. Our trusted estate lawyers meticulously draft your documents and then provide you with the opportunity to review these prior to finalisation. We pride ourselves on creating watertight documents to minimise future risks in a cost-effective manner. We have a fixed fee for Power of Attorney documents. Compare our very competitive prices. BSM law firm Sydney provides a free 20-minute initial consultation.
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.
Brander Smith McKnight Lawyers also provide professional legal advice and advocacy for executors in any estate including distribution and contested estates.
FAQs
How much does a Power of Attorney document cost?
Brander Smith McKnight’s wills and estates lawyers Sydney provide meticulously drafted power of attorney documents at a fixed highly competitive fee. We provide a premium and personalised service at a very low cost. Please phone for further advice.
What is the difference between Power of Attorney and Enduring Power of Attorney?
The principle difference between a power of attorney and an enduring power of attorney, is that an enduring power of attorney continues to operate even when the individual loses mental and physical capacity to make their own informed decisions. In contrast a general power of attorney ceases to take effect if you lose capacity. In general, we recommend that people have an enduring power of attorney. However, it is important that an estate lawyer clearly states in the legal document that it is an enduring power of attorney and that what this entails is clearly explained to you. The trusted and compassionate estate lawyers at BSM Sydney Lawyer can provide this service at a low fixed price.
What is the difference between Power of Attorney and Enduring Guardianship?
Enduring guardianship refers to the appointment of a person who is allowed to make decisions relating to your health and lifestyle in circumstances where you cannot make these decisions for yourself. Enduring guardianship is distinct from power of attorney because it does not authorise your nominated person or attorney to make financial decisions on your behalf.
Should I draft a PoA document myself?
Whilst you can prepare a PoA document yourself it is not in your best interests to do so. You should have an experienced estate lawyer draft a PoA document for you to ensure that it is both legally valid and properly reflects your intentions. In addition, a lawyer can fully explain all aspects and effects of a Power of Attorney document, including the difference between an enduring PoA and a general PoA, so you make a fully informed decision. The experienced wills and estates lawyers at BSM Sydney lawyers will listen to you carefully and answer all of your questions.
Who should I appoint as a PoA?
You can appoint anyone above the age of 18 as your PoA. It is recommended that you appoint someone who has your complete trust. This could be a spouse, family member or close friend who you can trust to act on your behalf.
What can I do if my PoA is abusing their authority?
Legal action can be taken against a PoA that is abusing their authority. What legal action can be taken will depend on the capacity of the person who has appointed the PoA. It is important to note, that having a PoA document professionally drafted by a lawyer can assist in mitigating the chance of any abuse of an attorney’s authority.
When will a Power of Attorney document take effect?
When a general PoA document will take effect is a decision that should be considered by the person appointing an attorney. For example, an appointer may wish to have the document take effect immediately, during a defined period of time or following your attorney’s agreement to the appointment. You should consider seeking legal advice to explore the various options relating to when a PoA document will take effect. The estate lawyers at BSM Lawyers Sydney can advise you on which best suits your situation.
What is capacity?
In the context of Power of Attorney documents, capacity refers to a person’s ability to understand, communicate and evaluate their choices. Where a mental illness, dementia or accident has rendered a person incapable of making or understanding the consequences of important financial decisions, they will be considered as not having capacity. An Enduring Power of Attorney document that was put in place when the person had capacity will still be effective if they subsequently lose the capacity to make decisions for themselves. Note, that you are unable to appoint either an enduring or general power of attorney if you have already lost capacity.
Should I use an online Power of Attorney template?
Whilst you can access power of attorney document templates online, you should consider having an estates lawyer draft the document. This will ensure that the document is tailored to your circumstances and instructions. Having a power of attorney document drafted by an estate lawyer also ensures that it is legally effective and water tight.
BSM Lawyer Sydney have offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.
About the Author
Aaron FanousBachelor of Laws I Bachelor of Science I Graduate Diploma of Legal Practice I Admitted to the Supreme Court of NSW & the High Court of Australia
View profileAaron holds a Bachelor of Laws and a Bachelor of Science. He has a Graduate Diploma of Legal Practice from the College of Law and is admitted to practice as a legal practitioner in the Supreme Court of NSW and the High Court of Australia. Aaron is a senior lawyer working in the areas of Estate Law, Conveyancing and Property Disputes. He has a passion for helping people and continues the BSM tradition of undertaking meticulous preparation to ensure that our clients achieve excellent results. Aaron has a wide breadth of knowledge and experience in estate law. He is familiar with the Probate and Administration Act and the Succession Act and has experience in enduring guardian, power of attorney, family provision claims and letters of administration.
