Hypothetical by Manny Wood published in the Coffs Coast News Of The Area on 23 October 2020.
Jack has been told that he needs a Power of Attorney. He consults a solicitor and asks the following questions.
Is a Power of Attorney a part of my will?
No, a Power of Attorney is a separate document. Your will comes into effect upon your death. A Power of Attorney can only be used during your lifetime, normally only if you lose capacity, and has no effect after you pass-away.
Can a Power of Attorney be used to make medical decisions on my behalf?
No, a Power of Attorney can only be used to manage your financial affairs. This means that your attorney can access your bank accounts and buy and sell assets of yours on your behalf. In New South Wales, medical decisions are governed by an appointment of an Enduring Guardian. While you can appoint the same person in both documents, they are separate documents.
What is an “Enduring” Power of Attorney?
An Enduring Power of Attorney “endures” your loss of capacity whereas a “general” Power of Attorney will cease to have effect if you lose capacity down the track.
Does a Power of Attorney take my rights away?
No, a Power of Attorney does need not affect your ability to manage your own affairs. Normally, Powers of Attorney contain a condition that it is only activated if you lose capacity and a medical practitioner evidences this in writing. A Power of Attorney can be executed and signed by your attorney now but will have no legal effect unless it is required at a later date.
Does a Power of Attorney need to be registered?
No, Powers of Attorney only need to be registered if they are used to buy or sell real estate. They are not normally registered and if necessary, can be registered later.
If YOU would like a particular issue addressed please email Manny at manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
