Im­por­tance of En­dur­ing Power of At­tor­ney

Kapi-Mana News - - OPINION -

An el­derly woman owned and lived in her home for many years af­ter her hus­band passed away. Over time she slowly started show­ing signs of de­men­tia, do­ing things like for­get­ting to lock the door or turn off stove el­e­ments.

Her chil­dren de­cided it would be a good idea for her to move in with one of them and for her house to be sold.

They went to a lawyer to dis­cuss sell­ing the property and were sur­prised to learn that be­cause of their mother’s lack of men­tal ca­pac­ity, she couldn’t sign an agree­ment to sell the property.

Her chil­dren thought they could sign on her be­half au­to­mat­i­cally, which is not the case.

She had not ap­pointed any­one as her Power of At­tor­ney, so they did not have the right to sign on her be­half.

Un­for­tu­nately the above sce­nario is not un­com­mon.

Nor is it limited to the el­derly, be­cause people at any age are un­for­tu­nately in­volved in ac­ci­dents that af­fect their men­tal ca­pac­ity, leav­ing no-one to make de­ci­sions on their be­half.

En­dur­ing Pow­ers of At­tor­ney are documents whereby you can ap­point some­one to make de­ci­sions on your be­half if you are un­able (or un­avail­able) to do so yourself.

There are two types of En­dur­ing Power of At­tor­ney: In re­la­tion to your property. This au­tho­rises your at­tor­ney to act in re­spect of all of your property af­fairs, but can be limited to only spe­cific property if ap­pro­pri­ate.

‘‘ Property’’ means ev­ery­thing you own – your house, in­vest­ments, bank ac­counts, per­sonal be­long­ings etc. You can choose whether you want this type of En­dur­ing Power of At­tor­ney to come into ef­fect im­me­di­ately, or only if you be­come men­tally in­ca­pable.

In re­la­tion to your per­sonal care and wel­fare (med­i­cal mat­ters).

This en­ables an at­tor­ney to make med­i­cal and other de­ci­sions about your care and wel­fare (for ex­am­ple, med­i­cal, mov­ing into an aged-care fa­cil­ity).

This type of En­dur­ing Power of At­tor­ney only takes ef­fect if you be­come men­tally in­ca­pable.

Many rest homes re­quire En­dur­ing Pow­ers of At­tor­ney to be in place be­fore they will ad­mit a res­i­dent.

En­dur­ing Pow­ers of At­tor­ney need to be made through a lawyer be­cause there are strict rules around them.

What hap­pens if you don’t make an En­dur­ing Power of At­tor­ney be­fore you are deemed men­tally in­ca­pable?

In the case above, with­out an En­dur­ing Power of At­tor­ney in place, the only way the chil­dren could be ap­pointed to act on her be­half is through the process of ap­ply­ing to the court to be ap­pointed her property man­ager or wel­fare guardian, which is time-con­sum­ing and much more ex­pen­sive than pre­par­ing an En­dur­ing Power of At­tor­ney.

Can your part­ner sign things on your be­half?

It is not un­com­mon for people to as­sume their part­ners can sign things on their be­half, but that is not gen­er­ally the case.

Your part­ner will gen­er­ally be able to sign in re­la­tion to jointly owned property (depend­ing on the type of property), but will not be able to deal with any ac­counts, poli­cies or pos­ses­sions if they are solely in your name.

Ev­ery adult should

have En­dur­ing Pow­ers of At­tor­ney, be­cause ac­ci­dents af­fect­ing men­tal ca­pac­ity can hap­pen to any­one at any time.

How­ever, here are some key events in your life that should cause you to par­tic­u­larly con­sider an En­dur­ing Power of At­tor­ney or, if you al­ready have one, to up­date it:

Get­ting mar­ried, sep­a­rated or di­vorced.

En­ter­ing into or end­ing a de facto re­la­tion­ship. Trav­el­ling over­seas. Buy­ing a house. If you are ex­pe­ri­enc­ing health con­cerns or fail­ing health.

If it is pos­si­ble you may be moved into an aged-care fa­cil­ity in the near fu­ture.

Your lawyer will be able to ad­vise you what is best for your sit­u­a­tion.

Col­umn cour­tesy of Rainey Collins Lawyers, ph 0800 733484.

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