Enduring power of attorney or general power of attorney?
Estate planning is more than just making sure you have a valid Will.
Appointing someone as either a general power of attorney or an enduring power of attorney means your wishes will be carried out throughout your lifetime, no matter what happens to you.
But what’s the difference between the two?
General power of attorney
A general power of attorney means you have appointed someone to make financial decisions for you while you still have the capacity to make those decisions. A general power of attorney is usually appointed for a specific time – for example, you might be overseas, and you need someone to take care of your bills and other finances while you are travelling.
A general power of attorney is the simplest form and it’s important to remember that if you die, or lose mental capacity to make decisions, a general power of attorney does not authorise that person to make health or lifestyle decisions for you.
Enduring power of attorney
An enduring power of attorney allows you to appoint someone you trust to make decisions about personal matters including health, and/or financial matters for you.
You can decide when your attorney’s power to make decisions for financial matters begins, including:
- when you no longer have capacity to make those decisions
- immediately
- from a specific date
- in particular circumstances or occasions.
To make an enduring power of attorney, you must be aged 18 or older and have capacity to understand the document you are signing and the powers it gives. It’s vital that you are capable of making the power of attorney freely and not under pressure from anyone else.
This means you need to understand:
- that you may specify or limit the power to be given to your attorney, and instruct your attorney about the exercise of the power in the enduring power of attorney
- when the power begins
- that once the power begins, your attorney will have full control over the exercise of the power (subject to any terms in the enduring power of attorney)
- that the power continues even if you lose capacity
- that you may revoke the enduring power of attorney at any time while you have capacity to do so
- that if you lose capacity (and are unable to revoke the enduring power of attorney) you are effectively unable to oversee the use of the power of attorney
An Enduring Power of Attorney will continue to have effect during your lifetime even if you lose capacity. It also becomes invalid upon your death, at which point the Executor named in your Will takes over the responsibility of administering your estate.
Who can be an attorney?
You should choose your attorney carefully. It’s important to appoint someone you trust, to ensure your money and other affairs are not mismanaged.
To be eligible to be an attorney, a person must:
- have capacity to make decisions they are appointed for
- be 18 years or older
- not be
- your paid carer or not have been your paid carer in the past three years. A paid carer is someone paid a fee or wage to care for a you, but not someone receiving a carer’s pension or benefit
- your health provider
- a service provider for a residential service where you live
- bankrupt or taking advantage of the laws of bankruptcy, if appointed for financial matters.
These are important legal decisions and at Bickell & Mackenzie, we recommend you seek advice before appointing a general or enduring power of attorney.
Our estate planning specialists can help you choose an enduring or general power of attorney, as well as draw up all the documents you need.
Contact our office today to make an appointment.
