March 2013

Enduring Powers of Attorney

The need to create them whilst you are fit and able.

Rest homes and retirement villages are now requiring that all residents must have Enduring Powers of Attorney (or equivalent Court Orders). We strongly recommend that when you update your Will you should have Enduring Powers of Attorney prepared at the same time.

What are Enduring Powers of Attorney?

They are authority, to the person or persons you choose to be your attorney/attorneys, for your attorney to make decisions and sign documents on your behalf particularly if you become legally incapable (that is, mentally incapable). Rest homes and retirement villages are principally concerned that if a resident’s health were to deteriorate they need to know who has the legal authority to make decisions on behalf of the resident – the Enduring Powers of Attorney answer that concern.

What types of Enduring Powers of Attorney are there?

There are two forms:

  • Enduring Power of Attorney as to Property – this relates to anything of monies worth such as land, bank accounts, investments, superannuation, furniture and chattels;
    Enduring Power of Attorney as to Personal Care & Welfare – this relates to non-monetary issues such as medical care and treatment.

  • Are there special requirements for Enduring Powers of Attorney?

Changes to the law in 2008 now require a number of decisions to be made as to the intended powers to be given to the proposed attorney/attorneys which have to be incorporated into the documentation. There are special rules regarding witnessing and a Solicitors Certificate to be completed and signed.

Can the Enduring Powers of Attorney be changed?

You can, at any stage (whilst you still have legal capacity), revoke your existing Enduring Powers of Attorney and appoint a new attorney/attorneys. The same special requirements (as indicated above) will apply to any new document.

What if there are no Enduring Powers of Attorney?

Too often, clients leave matters for too long; their health deteriorates and they no longer have legal capacity to sign the documents. In those cases, your family would have to apply to the Family Court for appropriate Orders. That process is much more expensive, time consuming and requires the Orders to be renewed every three years.

What should you do?

We can act for your family in applying to the Family Court for Orders BUT we would prefer if you were to see us now and provide us with instructions to prepare Enduring Powers of Attorney. They have to be signed whilst you are fit and able so there is no time like the present. Hopefully, the Enduring Powers of Attorney will never need to be used but, at least, they will be available if your health deteriorated rapidly.