Powers of Attorney

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Do you have a power of attorney?  At Di Rosa Lawyers, we recommend that anyone over the age of 18 years have power of attorney.

What is a power of attorney?

A power of attorney is a legal document by which you(“the donor”) appoint someone (“the donee” or “the attorney”) to act for you in relation to financial or legal matters in circumstances where you are unable to act for yourself for example if you are overseas or incapacitated in some way.

Types of powers of attorney

There are two main types of Powers of Attorney:

  • A general power of attorney is an authority given to a donee to deal with a donor’s financial or legal affairs. For example, it allows the attorney to buy and sell land or to operate the donor’s bank account if he or she is away overseas.   A general power of attorney ceases to operate in the event that the donor subsequently becomes legally incapacitated
  • An enduring power of attorney is a power of attorney that operates despite the fact that the donor has become legally incapacitated.

It is possible to have both a general and enduring power of attorney.  In this way, it is possible for the power to operate from the day it has been granted by the donor and accepted by the attorney and continue to operate notwithstanding the donor’s subsequent legal incapacity, or the power can be drafted in such a way that if only operates upon the donor becoming legally incapacitated.

It is important to understand that granting someone power of attorney does not mean you lose control over your affairs. You will still be able to handle your own affairs, while your attorney can only do the things that are allowed within the terms of the Power of Attorney (for example, it is not possible for an attorney to make gifts to himself or herself of your assets).

You must appoint your attorney very carefully and they must accept the appointment in order for the instrument to be operative.  You can have more than one attorney and they can act jointly and/or severally.

What may happen if you do not have a power of attorney

There is nothing to say that you have to appoint an attorney, but there are consequences if you do not. For example, it could lead to conflict over who should take charge of the decision-making process if you become unable to do this yourself.  Not having a power of attorney is also a problem if family members require immediate access to your bank accounts in order to pay for any medical treatment you need.

Unfortunately, we see many situations where people come to us after experiencing medical conditions such as a stroke or dementia where they have lost the mental capacity to appoint a power of attorney which would have been a valuable instrument in the management of their affairs. However, once you become legally incapacitated, it is too late to appoint a Power of Attorney and an application to the Guardianship Board of South Australia may be required for an administration order – red tape and cost that families could easily do without.

How we can help

We provide the following services in relation to powers of attorney:

  • Advising you on and preparing a power of attorney which is right for you
  • Reviewing and updating your power of attorney in the event of any change in the law or your personal circumstances
  • Arranging for your power of attorney to be deposited with the Lands Titles Office if the power of attorney is intended to be used in relation to the sale of your property
  • Holding your power of attorney and other important estate documents in our will bank at no charge to you
  • Writing to you every couple of years to remind you of the fact that you might consider reviewing your power of attorney
  • Advising you on and preparing a revocation of your power of attorney if needed or desired
  • Representing interested parties in applications before the Guardianship Board of South Australia
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