For the person appointing an attorney – the Donor
Because you are the person making or donating the enduring power of attorney, you are referred to as ‘the donor’.
What is an enduring power of attorney?
This is a legal document that appoints another person (or persons) to make financial and legal decisions for you. Unlike a general power of attorney, an enduring power of attorney continues to be valid even if you lose legal capacity in the future. ‘Enduring’ simply means that the power continues even if the person giving it loses the capacity to make decisions. It is useful as a means of ensuring that someone, chosen by you, takes control of your financial and legal affairs if and when you are ever unable to do so yourself.
Why give someone enduring power of attorney?
There are some circumstances in which you may be able to make decisions about matters that concern you. For example you may be overseas, or you may be too ill.
If you give someone a general power of attorney, for instance, to sign documents for you in your absence, that power will come to an immediate end if for some reason you lose legal capacity to make decisions. This could be very awkward if your attorney is in the process of conducting business for you.
Giving an attorney an enduring power means that the attorney is able to continue to act for you when you have lost capacity to make decisions for yourself.
Can I appoint more than one attorney?
Yes. Several options are provided for in the Instruments Act 1958. For example, you may choose to appoint a single attorney; or two or more “joint” attorneys; or two or more “joint and several” attorneys; or an “alternative: attorney.
The appointment of “joint” attorneys mean that all the attorneys can only act if they agree, and any documents must be signed by all of them.
The appointment of “joint and several” attorneys means that all the attorneys can act together if they all agree, or any pf the attorneys can act and sign documents together or alone.
The appointment of an “alternative” attorney means that an alternative attorney can only act in the event of the death or during the absence or legal incapacity of the attorney for whom the alternative attorney has been appointed.
It is important that your intentions be expressed clearly.
Whom should I appoint as my attorney?
You should appoint someone you trust to manage your property and financial affairs in your best interests. Many people choose their spouse or an adult child, but you may prefer to appoint another family member, a friend with expertise in the area, an accountant, a lawyer, or a trustee company. You should also feel confident that the person or agency is competent to deal with the management decision that may arise and capable of keeping accurate records of all dealings and transactions. The attorney you choose must be willing to take on the responsibility of your behalf.
Your attorney must be over 18 years of age and must not be bankrupt or insolvent.
Should I pay my attorney?
You do not need to pay your attorney for the power to be effective. Normally, payment is not made unless a trust company is acting as attorney.
Can I limit my attorney’s powers?
Yes, you can specify how much you want your attorney(s) to carry out their responsibilities to you and any special conditions you want to apply in the decision they make on your behalf. You can also include particular instructions about what you would like your attorney to do. Your attorney must act in accordance with your instructions.
Once the power to make a decision begins, your attorney will have full control over that decision unless you have explicitly limited that power in this document.
Where you have large capital assets, such as property or shares you should leave clear instructions for your attorney(s) as to how to deal with or distribute or dispose of these assets.
Note: It is better not to place too many restrictions on your attorney’s power, as this may make it difficult for your attorney to make decisions on your behalf. If you choose to impose conditions or restrictions on the power you are giving to your attorney(s), it is recommended you seek legal advice.
When does the attorney’s power begin?
You may nominate when your attorney’s power is to begin. You should indicate whether you want the attorney to assume power –
- Immediately; or
- On a specified date; or
- On a specified occasion.
Note: Even if you give your attorney power immediately, you may also continue to make decisions yourself while you are able to do so. While you retain capacity, your attorney must act in accordance with your directions.
How long does the power continue?
The power continues until it is revoked, or upon your death.
How can I be sure that my attorney will act in my interests?
While (if ever) you are unable to oversee your attorney’s decisions, the Public Advocate, the Victorian Civil an Administrative Tribunal (VCAT) and the court have the power to protect your interests. Your attorney may be required to produce a summary of receipts and expenditure or more detailed accounts, and these may be audited. An attorney who does not adequately protect your interests can be removed or replaced.
Can I change or revoke an enduring power of attorney?
Yes, you may change it or revoke it at any time, so long as you are capable of understanding what you are doing. In other words, so long as you have the capacity to make an enduring power of attorney, you also have the capacity to change it or revoke it.
How can I change or revoke an enduring power of attorney?
You can change or revoke an enduring power of attorney in exactly the same way as you change or revoke a general power of attorney. There are different reasons why you may want to change or revoke your power. Maybe your relationship with the attorney has changed, or your own circumstances are different, and the person you appointed is no longer appropriate for the role. It may be simply that either the attorney or you have moved.
Unlike a general power of attorney, however, it is likely that you will still need to appoint someone new to take control of your finances and legal affairs in the event of you no longer being able to make decisions for yourself. Remember – this is something that can happen to anyone.
There are a number of ways you can revoke the power. One is by telling the attorney that their power is withdrawn, and by destroying the enduring power of attorney document and any copies. Another way is by filling out a ‘Revocation of Enduring Power of Attorney’ and giving a copy of this to your attorney. You should ask your attorney to return the enduring power of attorney document. It is also a good idea to notify your bank or any other relevant groups, such as financial institutions or businesses, with which your attorney might have been dealing.
Note: Your attorney’s actions may be binding unless you notify the attorney that their power has been withdrawn.
If you lose legal capacity in the future, you will not be able to revoke an enduring power of attorney while you lack capacity.
If and when you do not have legal capacity, the Guardianship List of VCAT can revoke an enduring power of attorney if the Tribunal believes that the attorney is acting improperly, or against your best interests.
Is there anything else that will end this power?
Yes, several other circumstances will bring this enduring power of attorney to an end:
- If you die. If you die, the enduring power of attorney is revokes in its entirety.
- If you make an inconsistent document. This power is revoked to the extent of any inconsistency with any later document you complete. Where the power is inconsistent with a later enduring power of attorney, then the later power overrides the first.
- If your attorney resigns. Your attorney may resign by giving you a signed notice or by getting leave to resign from VCAT or the court.
- If your attorney becomes incapable. Your attorney’s power is revoked if he/she becomes incapable or understanding the nature and foreseeing the effects of a decision, and of communicating that decision.
- If your attorney becomes bankrupt or insolvent.
- If your attorney dies.
Prerequisites for appointing an attorney?
In order to be able to appoint someone with a power of attorney (either general or enduring), the law expects two things of you.
First, you must be 18 years of age or over.
Secondly, you must have sufficient capacity to make appointment.
Capacity is a legal term that means:
- You understand the main consequences of a decision;
- You are able to take responsibility for making a choice; and
- You are able to make a choice based on the risks and benefits important to you.
This means that at the time of making the appointment of the enduring power of attorney, you must be able to understand things such as:
- What sorts of power the attorney will have, and what sorts of decisions they will have the authority to make;
- When and how they will have the authority to exercise that power;
- The effects that their power could have on you and on the things that are important to you; and
- What options are open to you to cancel or change the arrangement in the future.
On the basis of understanding these sorts of issues, you need to be able to make your own decision. This means that you make the decision:
- Without pressure from anyone else; and
- Weighing up the pros and cons on the basis of what matters most of you.
When you make a decision in this way. You have made an informed decision or have given informed consent.
Who is involved in completing the document?
At least four people:
- You, as the donor. If you have a physical disability which prevents you from signing, you may instruct another person to sign for you, but you must give the instructions in front of the witnesses, and the signing must be done in your presence. This person must be 18 years old or more, and must not be a witness or your attorney. He/she must complete the statement beside the place for his/her signature/
- The two witnesses must sign the Certificate of Witnesses
One of the witnesses must be authorised by law to witness the signing of statutory declarations.
The witnesses must not be either yourself as the donor, or your attorney. At least one of the witnesses must not be a relative of yours or of the person(s) you appoint as your attorney(s).
The witnesses must sign the Certificate together in your presence and must choose one of the available options by crossing out the option (a) which does not apply:
- Either (a) that you signed the document freely and voluntarily in the presence of the witnesses;
- Or alternatively (a) that the document was signed in the presence of the witnesses by another person at your direction which was given freely and voluntarily;
And (b) at the time of signing you appeared to understand what you were doing, that is, you had a sufficient capacity.
If a witness is not sure that you understand the nature and effect of the document, he/she should refuse to sign the document.
- The attorney must sign and date the Statement of Acceptance.
Your attorney must be at least 18 years old.
What happens to this document when it is complete?
You should leave the original in a safe place, such as with your bank, but it is important to keep a copy to refer to. You should also give a copy to anyone else who may need to be involved, such as:
- Your attorney
- Your doctor
- Your solicitor
- Your accountant
- Your stockbroker
You may also wish to carry a card in your purse or wallet, stating that you have made an enduring power of attorney and giving details of that appointment.
So for more information, contact Andrew Quinn or Geoffrey Quinn.