Being appointed as a power of attorney is a deeply personal responsibility. Take some time to fully understand your role, so you can act with confidence when the time comes. Photo: insidecreativehouse.
If your parents started to need help with day-to-day tasks, your partner had a sudden health scare, or your sibling couldn’t sign a document while overseas, would you be able to act on their behalf?
Most people don’t give a power of attorney much thought unless they already have one in place.
But when life throws a curveball that forces big decisions, the question of who can step in for loved ones becomes very real. And when the spotlight lands on you, it’s crucial to know how the legalities work.
Simply put, a power of attorney authorises a person (the attorney) to make decisions about property, finances, or healthcare and medical treatment on behalf of another person (the principal).
This could include paying bills, signing documents, consenting to medical treatments, organising in-home or residential care, handling banking, and more.
Local solicitor with BDN Lawyers Aedan Billiards says the role will usually go to a spouse, but anyone over the age of 18 can be appointed.
“People tend to think a power of attorney is only for those who have lost the capacity to make decisions for themselves,” he says.
“The reality is, powers are given for many different reasons.
“They could be as simple as bidding on behalf of your partner when they can’t make it to an auction, or as complex as organising end-of-life care for an elderly parent.”
There are two types to consider in the ACT.
General powers of attorney are valid until the principal loses capacity or a specified end date is reached.
Enduring powers of attorney are permanent unless revoked. They carry through incapacitation and last until the principal passes away.
The rules are a little different in NSW, where a power of attorney only relates to legal and financial decisions. A separate appointment of an enduring guardian is needed to deal with medical and healthcare decisions – though both roles can be appointed to the same person.
Aedan Billiards joined BDN Lawyers in 2021. He was admitted to the ACT Supreme Court in June. Photo: Pete Dawn, Fifth Lane Photography.
Capacity, in this instance, is the ability to understand, make, and communicate decisions about your own life.
While it’s sometimes clear when a person loses this ability, Aedan says it may be necessary to obtain a medical opinion from a doctor.
“When a person loses capacity, they often are unable to appreciate the consequences of their decisions or lack thereof, which can expose them to various financial and health-related risks,” he says.
“This is why having a power of attorney in place to act when needed is so important.”
If you feel your loved one has lost decision-making capacity without a power of attorney, don’t panic. You can still be appointed as a financial manager or guardian. This is done through an application to the ACT Civil & Administrative Tribunal (ACAT) and requires the consent of interested parties.
Of course, it’s far better to have these arrangements made well before someone loses capacity, so they can determine who is appointed to manage their affairs.
Thinking about organising your own power of attorney?
Make sure to engage a lawyer when drawing up the agreement and having it signed. The ACT has strict witnessing rules and one mistake could invalidate the entire document.
“While this is an important decision that shouldn’t be taken lightly, don’t hesitate for fear of losing control,” Aedan says.
“It’s about making sure someone can step in when you need them, not taking away your independence.”
You can appoint multiple people to act jointly, independently, or both. You can also restrict specific decisions, dictate when the document should come into effect, and allocate certain powers to certain attorneys.
“There are clear protections in place to prevent powers from being abused,” Aedan says.
“Your attorney must sign an acceptance clause confirming their intent to act in your best interests and follow any instructions or conditions set out in the document.
“Regardless, you should still choose someone who is responsible and knowledgeable, and who you trust to keep your best interests at heart.”
For more information, visit BDN Lawyers.
