Understanding what power of attorney means is more than just grappling with legal jargon; it’s about planning for the future and protecting the well-being of your loved ones. Whether you’re planning for an unexpected medical situation or securing your financial affairs, having a clear and legally sound power of attorney is an indispensable part of responsible family planning.
What is a Power of Attorney?
Understanding the concept of “power of attorney” can offer peace of mind and a more secure future for your family. In its simplest form, a power of attorney is a legal document that grants one individual—often referred to as the “agent” or “attorney”—the authority to act on behalf of another person, known as the “principal.” We will refer to each as “attorney” and “principal” respectively for the rest of this article.
What is an Enduring Power of Attorney?
An enduring power of attorney goes a step further than a general power of attorney by remaining in effect even if the principal becomes mentally incapacitated. This is a crucial element for families looking to plan for unforeseen events like accidents or illnesses that could impair mental faculties.
Who is the Best Person to be a Power of Attorney?
Selecting the right person to act as your attorney is a decision that should not be made lightly. It’s a critical choice that requires careful deliberation and an in-depth understanding of the individual’s capabilities, trustworthiness, and willingness to take on such a role. Below are some key factors to consider when making this important decision.
It’s essential to choose an attorney who can make decisions with emotional intelligence and understanding, particularly if they are making choices around health care or family matters. The attorney should be capable of setting aside their own emotional biases to act in your best interest.
The attorney should have a sound financial background, especially if their scope of authority will include managing your financial affairs. Their track record should instil confidence in their ability to make prudent financial decisions. It’s not just about expertise; it’s about responsibility, ethics, and reliability.
Another important element to consider is the geographical location of your chosen attorney. Are they readily available to act on your behalf? If your attorney lives in a different state or country, this could pose logistical challenges. Choosing an attorney involves more than just picking someone you trust. It’s about choosing a person who combines emotional maturity with financial acuity and is readily available to make decisions on your behalf when needed.
At JP Family Law & Mediation, we understand that organising a power of attorney involves deep personal reflection and a strong grasp of legal implications. We’re committed to walking you through each step of this process, ensuring you make informed decisions that protect you and your family’s future. With our tailored solutions, you can rest assured that your family’s best interests will always be our primary focus.
Different Types of Power of Attorney
Understanding the various types of power of attorney ensures that you have the right arrangements in place for your unique situation. Here are some common forms:
General Power of Attorney
What is it?
A General Power of Attorney allows an attorney to make decisions concerning financial matters on behalf of the principal. This arrangement is in effect only as long as the principal has the capacity to make their own decisions about those matters.
When to use it
You might utilise a General Power of Attorney for a particular period or event. For example, if a principal is going overseas and needs someone to handle the sale of their house or to pay their bills, this type of power of attorney would be appropriate.
This form of power of attorney ends once the principal loses the capacity to make decisions for themselves, unless the power was given as security. It’s crucial to recognise that this type of power of attorney is not long-lasting and will not cover decisions beyond financial matters.
Enduring Power of Attorney
What it is
An Enduring Power of Attorney, or what is often called “enduring power of attorney,” allows an attorney to make both personal (including health) and financial decisions on behalf of the principal.
When it comes into effect
The attorney appointed for personal matters, including health-related decisions, can only exercise their power when the principal no longer has the capacity to make those decisions themselves. For financial matters, the principal has the flexibility to decide when their attorney’s power begins. It could be:
- When the principal no longer has the capacity for decision-making
- From a specific date
- In particular circumstances or occasions
This ensures that the principal has the comprehensive coverage they might need, especially in unexpected situations.
Who Can Override a Power of Attorney?
Conditions and Legal Requirements
Typically, only the principal can revoke or override their power of attorney as long as they are mentally competent. However, there are specific conditions under which a power of attorney can be overridden, such as:
- 1. If a court finds that the attorney is acting improperly or against the principal’s best interests.
- 2. If there’s a subsequent, conflicting power of attorney document that supersedes the first.
The Role of the Court and Other Institutions
The court can intervene to revoke or modify the power of attorney if evidence shows that the attorney is not acting in the principal’s best interest. Further, in cases of suspected fraud or abuse, family members or legal authorities may petition the court for intervention.
Can the Power of Attorney Change a Will?
In most jurisdictions, including Brisbane, an attorney under a power of attorney cannot change a will. A will is a personal testament that can only be changed by the person who created it (the testator) unless under exceptional court-sanctioned circumstances.
Attempting to use a power of attorney to alter a will can lead to legal complications and could be considered an abuse of the attorney’s powers. It is vital to consult with legal experts to understand the limitations of a power of attorney fully.
Making the Right Choice
Whether a General or Enduring Power of Attorney better suits your needs depends on your specific circumstances and what you foresee in terms of decision-making assistance. Given the complexities involved and the potential consequences of each choice, it’s highly advisable to consult legal professionals familiar with the Brisbane and broader Queensland legal landscapes.
At JP Family Law & Mediation, we can guide you through these intricate decisions, ensuring that you fully understand your options and how they align with your family’s best interests. Feel free to reach out to us for more insights into how these types of power of attorney could serve you and your family. Reach out to us for a consultation.