Power of attorney lawyers
Helping you make plans for the future
Life is full of bumps and twists. Many people experience significant and life-changing events that they didn't foresee and couldn't avoid. However, there is wisdom in the old saying, plan for the worst, hope for the best.
Powers of attorney (POAs) are examples of this: like insurance policies, they can act as a just in case measure. Just in case something happens to you. Just in case you can't make decisions for yourself. Just in case you're overseas when a critical decision looms. That's why a POA can be a powerful tool to protect your rights, assets, and loved ones.
Glossary
What is a power of attorney?
A power of attorney (POA) is a legal document that appoints someone else to make certain decisions for you when you're unable to make them for yourself, or need help.
In effect, the decision-maker stands in your shoes to make decisions on your behalf.
When you make a POA, you are known as the principal. The person (or people) you appoint as your decision-maker is known as your attorney. (This is different from the American use of the word attorney, which means lawyer).
There are three different types of POAs. Each has a different focus, and each allows decision-making in different circumstances:
A power of attorney (POA) is a legal document that appoints someone else to make certain decisions for you when you're unable to make them for yourself, or need help.
1. General POA
Under a general POA, your attorney can make financial and legal decisions on your behalf. However, they can only do so for a specific period set out in the POA document. This type of POA is rarely used. Enduring POAs tend to be more useful for most people.
A general POA starts operating from the time or event identified in the POA document.
2. Enduring POA
An enduring POA appoints someone to make financial and guardianship decisions. Often an enduring POA becomes effective as soon as it's made, and then it can be used as it's needed.
When you can't make decisions for yourself, it's known as losing decision-making capacity. It means you can no longer understand the nature or the effect of the decision, or you can't communicate your decision. For example, if you have a stroke, advanced dementia, or you're unconscious due to a medical event.
Examples of decisions that can be made under this type of POA include buying or selling assets or paying your bills.
This POA is enduring because it can continue to operate even if you lose the ability to make financial and legal decisions. However, the POA is only valid if you make the POA while you still have decision-making capacity.
Most people who make this type of POA do it just in case something unexpected happens to them in the future.
You can choose when an enduring POA starts operating. For example, it can commence:
- Immediately
- When you lose decision-making capacity
- On a specific date
We can discuss how your POA would best work for you. Contact us to learn more.
Johannes' enduring plans
Johannes recently celebrated his 60th birthday and decided that it was time to update his will. His lawyer also suggested that he consider making an enduring POA, just in case something unexpected happened to him. Johannes thought this would be a good idea and instructed his lawyer to draft an enduring POA, naming his wife Denise, as the attorney. Johannes felt relieved and confident knowing that his financial, legal and guardianship affairs could be managed by Denise, even if he could no longer make decisions for himself.
Enduring POAs can also be used for guardianship decisions, for example, personal and lifestyle decisions, including living arrangements and moving into aged care.
Pedro's guardianship decision
Pedro is aged in his mid-50s and married James five years ago. Pedro has asked his lawyer to create a complete estate plan, including a new will and powers of attorney. After discussing his POA needs with his lawyer, Pedro decides to make an enduring POA. He has had some serious medical issues that may affect his future health. It's possible that one day, Pedro may need to enter some form of supported care facility, or he will need a carer. In these circumstances, if Pedro loses the ability to make decisions for himself, he would like James to be able to make the decisions with a minimum of fuss or legal complications. Pedro makes an enduring POA appointing James as his attorney.
3. Medical treatment decision-maker
You can use a medical treatment decision-maker document (MTDM) to appoint someone to make medical decisions for you if you can't make those decisions for yourself. It is different from an enduring POA, which covers financial, legal and guardianship decisions. A medical treatment POA can be used in the same circumstances, for example, if you have a stroke, advanced dementia or are unconscious due to a medical event. But it's used to make different decisions, for example, end-of-life care, decisions to follow medical advice, and organ donation.
The MTDM will only operate if you lose the ability to make medical decisions for yourself. However, the MTDM is only valid if you make it while you have decision-making capacity.
Most people who make a MTDM do it just in case something unexpected happens to them in the future.
In addition to the MTDM, many people also choose to make an advance care directive (ACD) which imposes obligations on the health practitioners who care for you when you lose decision-making capacity. ACDs can be used to consent or refuse specific treatment or set out your preferences and values for medical treatment.
Bashira's medical treatment decision
Bashira is 71 years old, lives on her own, and enjoys good health. However, Bashira wants to make sure that her 45-year-old daughter Amal can make decisions about her care, should anything ever happen to her. Bashira is especially concerned about developing cancer because her mother recently passed away after a long battle with breast cancer. After getting legal advice, Bashira makes an MTDM document, appointing Amal as her decision-maker.
Do I need a power of attorney?
A POA is a just in case measure because it's often impossible to predict how or when you may lose your decision-making capacity.
You can only make a valid POA if you're able to make decisions for yourself. Because an enduring POA only starts working if you lose your decision-making capacity, it's critical to make your enduring POA before your capacity ever becomes an issue.
What type of power of attorney do I need?
The uses for the different POAs are set out above in "What is a power of attorney?".
To work out what POAs best suit your requirements, we recommend that you seek legal advice. Contact us to learn more about POAs.
Our power of attorney services
Our POA services are a vital part of estate planning. They include:
Considering
your personal, legal, financial and health circumstances
Discussing
your present and future needs
Advising
which POA documents you need
Advising
how to choose your decision-maker attorneys
Drafting
POA documents
Ensuring
your POA documents are correctly executed and safely stored
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Frequently asked questions about powers of attorney
Arrange your power of attorney today, just in case
Because you never know when you may need someone else to make decisions for you.