Australian Legal News & Updates

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We strongly recommends that everyone over 18 years consider making powers of attorney.

Why would I need a power of attorney?

Ask yourself what your family would do if they didn't have the power to access bank accounts or manage your business affairs if you were in a car accident and in a coma. Further what would happen to your finances if you became mentally incompetent. A Power of Attorney authorizes someone to deal with and manage your property for you. Your property includes all your assets and finances unless you specifically exclude certain things.

A person may want to provide a POA to take of his affaires he is away from the locality or when lose capacity to make decisions permanently or temporarily, due to accident or illness.

What is a POA?

• A Power of Attorney is a document which gives another person (your agent) authority or the right to make decisions for you and you give them the authority to carry the decisions out.
• The power can be specific to a certain task or broad to cover many financial and medical duties.
• The power can be given to start immediately, or upon mental incapacity.

Which types of POA are there?

In Victoria, there are four different powers of attorney. There is one general power and three enduring powers. The authority granted in a General Power of Attorney ceases at the death of the person granting the power unless it is an Enduring Power of Attorney. All of the enduring powers give your decision maker the authority to act when you cannot make your own choices.

Which one is right for you?

If you want someone to make financial and legal decisions for you for a limited time when you are unavailable, you need to make a general power of attorney. For example, if you are travelling overseas and need someone to take care of your property and finances while you are away you would have to give your chosen decision maker power of attorney. This means banks and other authorities would follow their instructions. A general power of attorney becomes invalid if you become unable to make your own decisions.

If you want to choose someone to make decisions for in case you lose capacity to make your own decisions, you need to make one or more enduring powers of attorney. Enduring powers are an option all people should consider because anyone can experience an accident or illness that affects their ability to make decisions.

What Should I Consider when Making A Power of Attorney?

• Who do you want to manage your finances?
• What instructions will you give them?
• Will it be limited or general?
• Do you want more than one attorney,
  • and if you want more than one, are they to act jointly or jointly and severally?
• If your attorney can't act or continue to act, do you want to name a substitute?

General Power of Attorney

Usually for a specific period of time you appoint someone, to make financial or legal decisions for you. If you appoint a General Power of Attorney and then lose legal capacity at a later stage the appointment will no longer be valid and the person you have appointed will no longer be able to make decisions on your behalf.

Enduring Power of Attorney (Financial) in Australia

An enduring power of attorney (financial) is a legal document that appoints one or more people to make financial or legal decisions for you in the event of you losing, at some time in the future, the capacity to make those decisions for yourself.

Unlike a general power of attorney, it continues to be legal even if you are unable to make these decisions yourself. This means that someone you choose can take control of your financial and legal affairs if you ever lose capacity.

When making decisions for you, your attorney must:

• act in your best interests
• wherever possible, make the same decision that you would make
• keep accurate records of dealings and transactions
• avoid situations where there is a conflict of interest
• keep your property and money separate from their own.

When does it start?

You can nominate when your attorney’s power starts. On the form you are asked if you want the attorney to begin:

• immediately
• on a specified date
• on a specified occasion.

Your attorney’s powers only begin after they have signed the statement of acceptance on the form.

If you do not select one of these options the power begins immediately.

If you choose to start it immediately, your attorney can act even if you still have capacity, but they must act in accordance with your directions. You can also continue to make decisions yourself while you have capacity.

If the power comes into effect once you have lost capacity, the attorney may have to prove that you have lost capacity. This usually requires some medical evidence. It is wise to give your attorney permission to speak to your doctor about your health so they can get this evidence.

Limiting your attorney’s powers

You can limit how you want your attorney to carry out their responsibilities and place conditions on the decisions they make on your behalf.

You can include instructions about what you would like your attorney to do and they must act on these. You can also set out your wishes, but these are not binding on the attorney.

If you have large capital assets, such as property or shares, you can leave clear instructions about how your attorney should manage, distribute or dispose of these assets.

It is better not to place too many restrictions on your attorney’s power, as this may make it difficult for them to make decisions on your behalf. If you do not specify any limits, your attorney will be able to make any financial or legal decisions on your behalf from the time the power of attorney begins until it is changed or cancelled.

Contact us more information regarding Changing or cancelling your powers'

Witnesses

An enduring power of attorney (financial) form must be witnessed by a person who can witness a statutory declaration.

Enduring Power of Attorney (Medical Treatment)

This is where you appoint someone to make medical treatment decisions for you in the event of you losing, at some time on the future, the capacity to make those decisions yourself

Enduring Power of Guardianship

This is where you appoint someone to make lifestyle decisions for you, such as where you will live, in the event of your losing, at some time in the future, the capacity to make those decisions yourself.

Revoking the Appointment

You can revoke the appointment by telling the attorney or guardian that their power is withdrawn, and by destroying the document and any copies.

Can an Power of Attorney (POA) made in another state be used in Victoria?

Most POA made in other states are recognised in Victoria. Please call us for a consultation for further clarification.

Can an Enduring Power of Attorney - financial made in Victoria be used in overseas?

The Victorian POA may be able to be used in another country. The person wanting to use it (the attorney) will need to check its validity with the country in which they wish to use the POA. The attorney should contact the country’s consulate or embassy for further details.

Can a person living overseas make an POA for use in Victoria? Who can witness the document?

A person living overseas can make a  POA so long as that person (the donor) has financial or legal matters in Victoria and is competent.

When making a POA overseas it is important to ensure that the people who are witnessing it can be found in the future so that, if required, they can give evidence that it was actually signed by the donor of the power.

Under the Evidence Act it is required that it be witnessed by:

• an Australian consular officer acting in that country; or
• an ambassador, envoy, Minister, chargé d’affaires, secretary of embassy or legation, consul-general, consul, vice-consul, acting consul, pro-consul, or consular agent of any part of Her Majesty’s dominions who is acting in that role in that country, or
• any person who has the power in that country to take an oath in that country; or
• a public notary (or notary public as known is some countries).

Contact us for more information if you need legal advice = This e-mail address is being protected from spambots. You need JavaScript enabled to view it

POWERS OF ATTORNEY ACT 2000

Source: we have sourced information from the relevant statutory instruments, from many legal literatures for this article including from the office of the Public Advocate and legal aid Victoria

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A will lets you say how you want your property dealt with when you die. Making a valid Will is very important. It is the only way to ensure your estate is passed on in the way you would have wanted.

As lawyers we never approve of cheap will kits. Let’s say even if it is drafted correctly it may not be properly executed, making it invalid. After you die, you won’t be around to take care of any “loose strings” or things that aren’t properly dealt with in your will.

The cost of doing a proper will is not that much and it will be money well spent considering the outcome if it is made invalid when you are not around.

Around 1/3 who draw up a will either misplace it or let it get damaged, or do not inform their executors where the original will is kept. We offer all our clients a free safe custody service for the original will. Supreme Court only accepts original and valid wills.

Via a will you can nominate who gets what for example assets, such as houses, cars, money and shares

Rights and powers, such as the right to appoint the trustee of a family trust Specific belongings such as a painting, wedding rings, heritage goods, furniture, books etc.

Making a valid legal will is not a matter to be taken lightly.

At ORA we advise and assist in the preparation of your legal will. We also assist in applications for grant of Probate and other testamentary matters.

Contact us for more information.

Below are comments by

Dinesh Weerakkody LLB; PDLP 
Barrister & Solicitor (An Australian Legal Practitioner) 
An Australian Migration Agent (0742843)

“People can buy Will Kits (Do-it-yourself kits) to save money on legal fees. How wrong they sometimes are – as the Supreme Court decision below demonstrates.”

Application of Russell-Smith; Estate of Plumwood [2010] NSWSC 257 (8 April 2010)
http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2010/257.html

Below are extracts from the judgment

13 Dr Plumwood arranged for two people to sign the document as attesting witnesses. They did not sign the document together. One of the witnesses, Ms Job, had little recollection of the occasion. The document is undated. Neither witness was able to state when they placed their signatures on the document. The other witness, Mr Perkins deposed that it occurred sometime before June 2006 and might have been in 2005. He recalled visiting Dr Plumwood at the property. No-one else was present. Dr Plumwood had purchased the draft will from a newsagent. He advised her to consider seeking professional legal assistance but she expressed a desire to save money by using a do-it-yourself type of will. Mr Perkins told Dr Plumwood that he was not happy with her decision to leave the property to the Bush Heritage organisation as he thought that the most enduring protection for the property would be provided by its being given to the National Parks and Wildlife Service.


And later:

21 It is a great pity that in a misguided effort to save costs, Dr Plumwood should have put the estate to the delay and expense of obtaining evidence to throw light on which of either of the later documents she intended to constitute her will. It is also unfortunate that the author of the will kit should have instructed potential testators to execute and have attested what was intended only to be a draft. If the kit is still available for purchase I trust that the proprietor of the kit will correct the text.

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