What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document that operates only whilst you are alive and allows another person or persons to make financial and legal decisions on your behalf either straight away or upon you becoming legally incapacitated (i.e. of unsound mind). These persons may be a friend, relative, solicitor or accountant. You can appoint more than one person to act as your Attorney. In that event, you will need to nominate whether those people have to make decisions together, or separately.
Helpful Questions & Answers
WHEN DOES THE POWER OF ATTORNEY COME INTO EFFECT?
The power you give to your attorney can commence either immediately upon its execution (whilst you are still of sound mind), or only in the event of your subsequent legal incapacity. We recommend that it only become effective in the event of your subsequent incapacity for a number of reasons including the following:
- There is rarely a reason for you not to be in control of your own finances if you are of sound mind (unless you regularly travel out of the country); and
- The attorney may dispose of an item contrary to your intentions and this may result in a disagreement.
WHAT CAN YOUR ATTORNEY DO?
In most cases, we would recommend that you allow your Attorney to do anything an Attorney can legally do. We suggest that you do not impose any limitations on the Attorney. This is because it could also prove burdensome on the Attorney if a need arises for the Attorney to act contrary to the limitation you have imposed. The Attorney would then need to make an application to the Court to deal with your affairs contrary to the limitation.
There may be some occasions where it may be appropriate to limit the power of your Attorney. If you consider this may be applicable to you, please let us know and we can provide you with advice accordingly. If you wish to impose limitations on your Attorney, this will incur an additional charge as this is outside our Standard package. Our solicitor will talk to you before commencing any work on drafting these provisions as to what the likely cost will be for them. We will not draft those clauses unless you are happy for us to do so.
The decision is entirely yours to make, whether you wish to limit or direct how the power of your Attorney should be exercised.
Call us on (08) 7001 6135 if you need assistance with the preparation of an Enduring Power of Attorney
Discounts are available for the preparation of Wills, Enduring Powers of Attorney and Advance Care Directives for couples. We also offer a package discount, so that you can have all three documents prepared at a lower price.
WHAT ABOUT A GENERAL POWER OF ATTORNEY?
An Enduring Power of Attorney differs from a General Power of Attorney slightly, but significantly. While a General Power of Attorney is revoked automatically if you become legally incapacitated, an Enduring Power of Attorney will still be effective notwithstanding your subsequent incapacity. It is for this reason that we always recommend that an Enduring, rather than a General, Power of Attorney be drafted.
WHO CAN MAKE AN ENDURING POWER OF ATTORNEY?
In South Australia any person who is over 18 years and who has ‘legal capacity’ (can make a Power of Attorney). No-one else can make a Power of Attorney for you.
WHEN DOES THE ENDURING POWER OF ATTORNEY COME INTO EFFECT?
An Enduring Power of Attorney can come into effect:
- Immediately upon execution; or
- Upon your incapacity.
Unless there are good reasons for having it operate immediately (for example, if you are going on an overseas holiday and need someone to manage your finances whilst you are away), it is advisable to have it operating upon your subsequent incapacity. There is rarely a reason for you not to be in control of your own finances if you are of sound mind. Further, the Attorney may dispose of an asset contrary to your intentions and this may cause disagreement.
WHEN DOES AN ENDURING POWER OF ATTORNEY COME TO AN END?
An Enduring Power of Attorney comes to an end in one of the following circumstances:
- You revoke it formally by subsequently executing a Revocation of Enduring Power of Attorney (only if you are still of sound mind); or
- When you die (in which case your Will comes into effect).
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