General Information - Powers of Attorney
1. WHAT IS A POWER OF ATTORNEY
A Power of Attorney is a document that legally gives authority to another to look after your financial and legal affairs. Once appointed, the person you appoint can sign all documents on your behalf, and effectively “stands in your shoes”, making all decisions that you would otherwise be required to make.
2. THERE ARE TWO ESSENTIAL TYPES Enduring Power of Attorney
(Financial) - An Enduring Power of Attorney (Financial) is used in case you suffer an accident, sudden illness or disability, offering security that someone will look after your financial and legal affairs. You must make such a Power while you are still capable of making legal and financial decisions for yourself.
Thereafter, if you become incapable of such decisions, your appointedperson can manage your financial affairs and make legal decisions on your behalf, except make your Will.
These Powers of Attorney are for long term security, and if you lose the capacity to make decisions, will continue until your demise. However, the Guardianship and Administration Board may overrule the Power if in its view the Attorney is not acting in your best interests.
In April 2004, the requirements for the correct executionof Powers of Attorney for financial matters changed. It is now a more rigorous document, requiring one of the witnesses to be certified to witness documents (i.e. A Justice of the Peace, practicing solicitor etc). The document has three parts – thePower of Attorney, Certificate of Witness and Statement of Acceptance (this last is signed by the person who consents to be granted the Power of Attorney).
Essentially it functions in the same way as any other Power of Attorney, but the terms are more explicitly stated.
(Medical Treatment) - This is similar to an Enduring Power of Attorney, except the attorney is required to make decisions about your physical health as opposed to your financial and legal affairs. This Power authorises your appointed person to authorise medical treatment, such as an operation, when you are not in a position to make that decision or give that consent yourself.
To activate this Power, you must be either unconscious or otherwise incompetent.
3. WHY SIGN AN ENDURING POWER OF ATTORNEY NOW?
Such a Power must be signed while you are still legally capable of managing your affairs. Most situations requiring such a Power happen quickly and without warning. Once you lose the capacity to make your own decisions, you cannot sign a Power of Attorney, and other avenues to appoint a manager of your affairs can be time-consuming and costly.
The usual procedure is to apply for an appointment with the Guardianship & Administration Board, which can take some time and in the interim, no-one can manage your affairs.
4. WHO SHOULD I APPOINT?
The Attorney must be at least 18 years old and themselves capable of managing their own affairs. You must have confidence in their ability to manage financial and legal affairs, and must obtain their consent to the appointment.
Your appointed Attorney is obliged to always act in your best interests.