Powers of Attorney - Making Decisions For People Who Cannot Make Their Own

By Bradley Allen Love Lawyers

It is a fact of life that many of us will grow old before we finally pass away.  Since we are living to ever greater ages (the current life expectancy in Australia for males is 79 and females, 84) we are seeing increasing incidences of debilitating diseases such as dementia.

As dementia or other illnesses progress, a person can very rapidly lose the ability to make decisions for themselves about their property, where they live or what medical treatment they do or do not receive.  This can place on the partner or next-of-kin the additional burden of applying to the ACT Civil and Administrative Tribunal to become their Guardian or Manager.

It is, sadly, not only older people who lose capacity though.  We all too often hear stories of young people who, as the result of a disease or an accident, lose capacity to make decisions for themselves.  As no one is invincible, young people should also plan for the unlikely event that they may not be able to make decisions for themselves in the future.

By preparing a valid Enduring Power of Attorney in advance a person can plan for the worst by appointing someone of their own choosing to act as their attorney in relation to property, personal care and medical care matters.

The person making the Enduring Power of Attorney may appoint more than one attorney and different attorneys for each of the different functions.  The Enduring Power of Attorney may also set out conditions or directions for certain types of decisions (e.g. restricting the power over finances to certain assets or dealing with end of life matters).  Attorneys do have a great deal of autonomy so only trusted people should be appointed.

The power to deal with medical and personal care matters only comes in to force if the person is no longer able to make decisions for themselves. The attorney’s authority over financial matters can commence immediately, on a date of the person’s choosing or when the person loses decision-making capacity.  It is useful in some contexts to have the power commence immediately; however, it is most common for the power to commence only when the person loses capacity.

Enduring Powers of Attorney are designed to give broad powers and flexibility to enable decisions to be made while a person is incapacitated. There are times when a person has capacity but it is convenient or necessary to have someone else act on their behalf.  In this case, a General Power of Attorney may be useful.  A General Power of Attorney may empower an attorney to act for a specific purpose (e.g. to sign contracts and other documents for the sale or purchase of a property) or for a specified time (e.g. while the person is overseas.) An appointment under a General Power of Attorney is only effective while the person continues to have capacity.

For Enduring and General Powers of Attorney the attorney must act only in the interests, or pursuant to the specific instructions, of the person.

Powers of Attorney, whether Enduring or General, are fundamentally empowering and protective for the person making it – and you never know when they might be useful.

Article produced by Bradley Allen Love




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