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Power of Attorney & Powers of Guardianship

What about planning during your life?
A Will ensures that your wishes are carried out upon your death, but what about while you are still living?  Planning for the incident of temporary or permanent incapacitation can ensure that necessary decisions are made at the right time.

What is a Power of Attorney?

A Power of Attorney (POA) is an official document by which you (the donor) appoint another person (the donor) to act on your behalf.

The powers granted under a POA can be:
  • General - allowing the attorney to authorise anything that the donor can organise; or
  • Restricted - allowing the attorney to only perform specific functions and/or only becoming effective after the occurrence of a contingent event.
There are two main types of POAs:
  • General
    • Usually prepared where the donor (person granting the power) wishes the attorney to perform a specific function for a limited period, such as operating bank accounts while overseas
    • Only operates while the donor has mental capacity.  It is revoked when the donor loses mental capacity.
  • Enduring
    • Usually prepared where a donor wishes the attorney to perform either general or specific functions which continues to operate if the donor loses mental capacity
    • If desired, a clause can be inserted in the Enduring POA so that it only becomes operational once the donor loses mental capacity.
There are three main categories of POAs:
  • Medical POA who makes medical decisions for the donor
  • Financial POA who makes financial and legal decisions for the donor
  • Power of Guardianship who makes lifestyle decisions for the donor such as living arrangements.
By making both an enduring power of attorney, which covers legal and financial affairs, and an enduring power of guardianship, you are essentially making a ‘living will’, to ensure your wishes are known if you become unable to make decisions for yourself.

When the donor dies, all Powers of Attorney and Powers of Guardianship cease to exist.

A donor can revoke a POA at any time as long as they still have mental capacity.