Powers of Attorney

 A General Power of Attorney, which ceases to have effect when the Donor becomes of Case studies unsound mind;  an Enduring Power of Attorney, which 1. A young woman is travelling overseas and continues to have effect once the Donor is wishes to authorise her partner to deal unable to deal with their own affairs, say with selling a property on her behalf whilst due to loss of mental capacity. she is away. She can make a Power of Attorney with a limitation, expressing the POWERS OF ATTORNEY power only applies between specified Enduring Powers of Attorney dates and only for signing documents in relation to the sale of that property. The Powers of Attorney Act 2003 (‘the Act’) The new Act makes additional requirements for introduced new changes to the laws relating to making an Enduring Power of Attorney: 2. A retired man wishes to authorise his son to Powers of Attorney and in particular to Enduring deal with his financial affairs on a Powers of Attorney.  The Donee must consent to the authority by permanent basis. He makes an Enduring signing the form; Power of Attorney and is subsequently The Act applies to any Power of Attorney  The Donor’s signature must be witnessed by diagnosed with a debilitating mental executed on or after 16 February 2004. Any either a solicitor, barrister, Registrar of a illness. His son will be able to continue to Powers of Attorney created prior to this date Local Court, Licensed Conveyancer or make decisions in relation to his financial continue to be governed by the relevant employee of the Public Trustee having affairs. provisions of the Conveyancing Act 1900 (with completed an approved course; some exceptions).  The witness must sign a Certificate to the What about Lifestyle Decisions? effect that they have explained the effect A Power of Attorney only applies to financial What is a Power of Attorney? of the Power to the Donor and that the affairs. For decisions regarding lifestyle affairs, Donor understood its effect. A Power of Attorney is a document conferring a such as where a person is to live or what medical treatment he or she is to receive, you should power on the “ Donee” (Attorney) by the Benefits to the Attorney and others “Donor” (Principal), authorising the Donee to consider appointing an Enduring Guardian. deal with the Donor’s financial affairs. The Act has clarified the area of whether an Attorney can use the Donor’s funds to confer It is a wide and general power and covers such benefits on themselves or others. Under the things as buying or selling real estate, drawing For further information please don’t hesitate to new Act, specific clauses on the new prescribed funds from bank accounts, buying and selling contact; form can be included, allowing the Donee to: shares etc., but not the delegation of authority for company directors’ and trustee’s duties.  give gifts from the Donor’s funds to close Grahame Jackson BEc.LLB friends and relatives; Why have a Power of Attorney?  draw from the Donor’s funds to benefit the [email protected] Donee’s reasonable living and medical expenses; A Power of Attorney is useful when the Donor Tel : 02 9908 1700  draw from the Donor’s funds to benefit will not be able to deal with their own affairs others’ reasonable living and medical and requires someone to do so on their behalf. Fax : 02 9908 1755 expenses. There are two types:

© GJALAW Pty Ltd  Be over the age of 18 years; Unlike an Attorney, an Enduring Guardian can ENDURING GUARDIANSHIP  Not be involved in a professional or only begin to make decisions on your behalf once administrative way in providing services you have lost capacity to do so. In 1997 the Guardianship Act 1987 (“the Act”) for you for a fee or payment eg. a doctor, was amended, allowing persons to appoint an nurse, psychiatrist etc. If you marry or remarry, the appointment of the Enduring Guardian of their choice. The Act Enduring Guardian is revoked. A new provides a framework for the powers and To appoint an Enduring Guardian: appointment will have to be made. functions of Guardians and the powers of review Example: say in Case Study 2 above, the retired 1. Complete and sign a “Form of and intervention of the Guardianship Tribunal man also appoints his son as Enduring Guardian Appointment”. The Act prescribes a form and the Supreme Court. at the same time as an Attorney under Power of of appointment to which you may add any Attorney. His son would be able to deal with his conditions or limitations; What is an Enduring Guardian? father’s financial affairs before he contracted 2. The Guardian must also sign the form the mental illness, and his appointment as consenting to their appointment; An Enduring Guardian is a person appointed by Guardian would then take place after he 3. An Eligible Witness must witness all an adult with capacity (the Appointor) to make contracted the mental illness, to fully care for signatures on the form. This can be a lifestyle decisions on the Appointor’s behalf. his father’s lifestyle needs. Solicitor, Barrister or Clerk of the Local The Enduring Guardian can make the following Court and must not be an appointed decisions on the Appointor’s behalf: guardian; 4. The witness must sign an acknowledgement For further information please don’t hesitate to that both the Appointor and Guardian  Decide the place in which the Appointor is contact; to live; signed the form voluntarily and appeared to understand its effect.  Decide the health care the Appointor is to Grahame Jackson BEc.LLB receive;  Give consent to carrying out certain medical Can I appoint more than one Guardian? [email protected] or dental treatment on the Appointor;  Any other function relating to the Yes. You can appoint 2 or more Guardians Appointor’s person as specified. jointly, severally or jointly and severally. Depending on their appointment, the Guardians Tel : 02 9908 1700 How do I appoint an Enduring may or may not be required to agree on decisions to be made on your behalf. Fax : 02 9908 1755 Guardian? You can also appoint 2 or more Guardians Firstly, consider who it is you should appoint as separately (i.e. on different forms). For Grahame Jackson & Associates your Enduring Guardian, as this person will have example, you may appoint one Guardian to make Attorneys at Law a wide discretion in making decisions affecting decisions in relation to your medical and dental your health and lifestyle. You should preferably treatment and appoint a second Guardian to Suite 4, 3-7 Grosvenor Street appoint someone who you trust and who will make decisions in relation to where you will live. Neutral Bay NSW 2089. take into account any views you may have on your lifestyle. When does the Enduring Guardianship ABN: 31 099 497 551 An eligible Guardian must: begin?