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ENDURING POWERS OF ATTORNEY

October 30, 2019 by Mark White

Introduction

There is an old saying that nothing is more certain from birth than death and taxes. Unfortunately from birth nobody knows the length of the journey until death or the different paths that journey may take. After a person reaches the age of 18 they are entitled to make an Enduring Power of Attorney. This document enables a party that is appointed to do all acts regarding the finances and some of the personal affairs of the person appointing that party in the event that that party is either out of the jurisdiction and cannot do those actions or is incapable due to some physical injury or has lost their mental capacity due to for example dementia in the case of the elderly where the attorney can continue to make decisions as if that person had full capacity on behalf of that party.

For a young person it might be that they have sustained an injury that has deprived them of the ability to sign documents or they may be in a coma. The vicissitudes of life are many and varied and one does not know what is around the corner.

State of Victoria

An Enduring Power of Attorney is not only needed in the State of Victoria where most of our clients are located but in all other States and Territories of Australia and there may be the need for a specific Power of Attorney in another State if a person owns assets in another State or Territory.

Why should I have a Power of Attorney?

What is often overlooked is that a person in order to make a Power of Attorney during their lifetime must have the capacity to do so at the time that the Power of Attorney is made. If they do not, then the Power of Attorney document is invalid abenitio (from the beginning).

Another way of looking at the creation of this document is that it is a cheap alternative to having to apply for guardianship in the event that a person has not created an Enduring Power of Attorney at a time when they had capacity to protect them when they did not have capacity. If there is no capacity and there are assets to be looked after then an application must be made to the VCAT for a guardian to be appointed.

This can be an expensive process.

Conclusion

An Enduring Power of Attorney is an effective tool to assist a person to look after their affairs when they no longer can. Careful consideration should be given to whom the power is granted and for what purpose. Further consideration must be given to any specific stipulations such as whether the power commences immediately upon execution of the document or at some later stage.

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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