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CONSIDERATION FOR ENDURING POWERS OF ATTORNEY

November 16, 2019 by Mark White

Introduction

How do you decide who is to be your power of attorney?

What elements should you consider?

Who is to be the Attorney?

Usually it is the wife, husband, defacto partner or child. In some cases it may be a close friend or trusted advisor.

The person who is appointed the Attorney must also have capacity at the time of appointment and must have capacity when the Power of Attorney is being exercised. Appointing someone 50 years older than one’s self for example does not guarantee that the Attorney will either have capacity or survive to exercise such an appointment. In Victoria if a person has been convicted of dishonesty or fraud that must be disclosed to the person granting the Attorney or the Power of Attorney will be invalid. Similarly in Victoria an Attorney cannot be a care worker for the grantor of the Attorney or the proprietor of a nursing home or the like where that person resides.

Capacity

It should be clear from the Enduring Power of Attorney document that the persons appointed have capacity. This is particularly important in the case of the elderly so that the allegation by others of elderly abuse can be avoided and therefore the Attorney can exercise the powers granted in the best interests of the grantor and not face such assertions.

Similarly the people witnessing the document when it is executed must be able to determine that the person giving the Enduring Power of Attorney had capacity to do so at the time of signing the document. Both witnesses must be over 18, have full capacity themselves and be confident that the grantor has the capacity to execute the document.

When selecting a party to act as an attorney the grantor should ensure as much as reasonably possible that the person they are appointing does not have issues of their own that may make it difficult for them to act properly, to make reasonable decisions or worse, to act dishonestly, fraudulently or improperly.

Multiple Attorneys

The above comments also apply in situations where more than one person is appointed as the attorney. A choice of multiple attorneys, usually two, will leave the choice as to whether they can act independently or whether they should act jointly. If it is the latter, then consideration will need to be given to what happens if one is unable to exercise the power of attorney due to death or incapacity and what effect this will have.

A possible reason for more than one attorney is if one of them lives remotely. Each grantor will no doubt have their own reasons having regard to their circumstances and relationships as to their choice.

Special Conditions

The grantor of the Enduring Power of Attorney may stipulate who they wish for the attorneys to use or how they should exercise their power with regard to the following examples:

1. The selection of lawyers.

2. The selection of accountants.

3. Directions for the care of their pet.

4. Whether their home can be sold.

5. Regard to be had to the provisions in their last will and testament.

6. Compliance with their superannuation investments or structure.

Disclaimer

The information contained herein is general in nature and is not to be relied upon. Should you wish to make an Enduring Power of Attorney please contact White & Mason Lawyers on (03) 9088 0488 at mdw@whiteandmason.com.au for professional advice and assistance.

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