For many people, the primary purpose of a Power of Attorney is to appoint someone to look after their financial affairs if they are incapable of doing so. A regular Power of Attorney is automatically null and void if you become infirm. Now it is possible to prepare a document called an Enduring Power of Attorney that is still valid after incapacity.
An Enduring Power of Attorney only provides your attorney the ability to look after your financial affairs including your real estate. To appoint someone to look after your personal care and make health care decisions on your behalf you require a Personal Care Directive.
An Enduring Power of Attorney can take effect immediately or it can become effective only after incapacity. Your Attorney can have unlimited power or you can include restrictions and conditions.
Without an Enduring Power of Attorney, someone (not always your choice) will have to make a time-consuming and expensive court application in order to look after your affairs should you become incapacitated. Preparing an Enduring Power of Attorney allows you to make the choice and lessen the burden on your family at an already difficult time.
An Enduring Power of Attorney is a very powerful document. It allows your attorney the ability to deal with your finances while you are incapacitated and not able to supervise or direct what they are doing.
Your Enduring Power of Attorney can take effect when you sign it (immediate). If you do not need to use it you can simply keep it in storage until required. When a situation arises where you need to use it for any reason it is available and easily used.
You can also provide that your Enduring Power of Attorney only takes effect on the occurrence of a specific event (springing). A typical condition for use is on the written advice of a licensed medical doctor that the person is incapacitated. You can use other conditions such as naming the specific doctor who is consulted. However the more restrictive the conditions are, the more likely your attorney will have difficulties making the document effective.
You can also prepare an Enduring Power of Attorney that is effective as soon as it is signed and then continuing in the event of incapacity. In our experience, many couples will prepare an immediate Power of Attorney as it can be quite useful in a number of different situations where both parties are still quite capable. For example, it can be used to sell real estate where one party is out of town on business or is already at the new destination. Also, someone who is frail and elderly may have all their mental faculties and still prefers to use an Enduring Power of Attorney to have someone assist them in looking after their financial affairs.
You can expand or restrict the powers of your attorney. For example, you can state that the attorney can only act for the benefit of you and your spouse and not any grown children. You can restrict the ability to sell land or other specific assets. Restrictions can also cover the range of investments allowed.
You can also provide specific extra powers so your attorney has greater certainty in doing their job. For example, you can ask your attorney to continue making gifts to your favorite charities or to certain family members.
Talk to us about preparing your Enduring Power of Attorney. We can answer any questions you might have. In most cases, we can meet with you, answer your questions, take your instructions, prepare the documents and meet with you to sign the documents in one visit to our office. Where circumstances warrant, we will attend at your residence or health care facility to complete these documents. There is an extra fee for this additional service.