Practical Considerations when making Powers of Attorney

A Power of Attorney is a legal document where a ‘principal’ appoints an ‘attorney’ to act on their behalf in relation to their legal and financial affairs.

When dealing with individuals, there are two broad categories of powers of attorney, namely:

  1. A General Power of Attorney which allows the attorney to act whilst the principal has capacity. These documents are most commonly used for a specific purpose or when the principal is on an overseas holiday.
  2. An Enduring Power of Attorney endures should the principal lose capacity after the execution of the document. A solicitor’s certificate is required stating that the solicitor has explained to the appointor the effect of the enduring nature of the document.

 

In each case, there are a number of practical considerations, including:

  1. Who to appoint. This is often the most important consideration, as a power of attorney grants significant powers to an attorney to act on behalf of the principal.
  2. The powers that the principal grants to his or her attorney. For example, can the attorney use the principal’s finances to meet their own reasonable living and medical expenses? Are there an limitations on what the Attorney can do?
  3. When the power of attorney is to take effect. For example, is it to only take effect once a medical practitioner has deemed that you are unable to look after your own legal and financial affairs or when your attorney considers the principal needs assistance.

It is important to remember that as an attorney there are both criminal and civil penalties acting outside of the Powers of Attorney Act and/or the document itself.

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