Powers of Attorney – the myths and reality

Powers of attorney can be a great help your family, if you lose your mental capacity, either temporarily or permanently. However, they are surrounded by myths. Here are some of the questions we often hear.

What is an enduring power of attorney?

A power of attorney gives someone you nominate (the attorney) a power to sign documents on your behalf, subject to the restrictions in the power of attorney document. “Enduring” means that the power of attorney is still valid even if you lose your mental capacity.

Can a power of attorney be used to defeat the intentions in my will?

The problem arises when your will leaves something to a beneficiary, but it is sold before you die. Clearly, you cannot give something by will if you do not have it when you die. If it was sold under a power of attorney then, by law, the beneficiary who was to receive the gift would be entitled to receive the proceeds of sale.

Does the power of attorney take away my own powers?

No, giving someone power of attorney does not affect your own legal rights.

Can a power of attorney be revoked?

Yes, a power of attorney can be revoked at any time, simply by notifying the attorney.

Can an attorney steal my assets?

It is up to you what powers you give under your power of attorney. Unless the document clearly says so, the attorney has no right to use it to give themselves a benefit. But it is still important that your attorney should be someone you trust. To reduce the risk, you should consider appointing two or more attorneys, and requiring them all to sign any documents.

Can I have more than one power of attorney?

Yes, there is no legal problem in granting a power of attorney to two or more people, either under the same document or under separate powers of attorney.

What if I don't want the power of attorney to operate until I lose mental capacity?

No problem, this can be covered under the wording of the document.

What is the difference between a power of attorney and enduring guardianship?

A power of attorney is only to allow your attorney to sign documents on your behalf. It gives no power to make any lifestyle decisions such as where you live, or what medical or other treatment you may receive. It is a good idea to have an enduring guardianship, where you appoint one or more trusted people to make these lifestyle decisions, if you lose your mental capacity. You can include your own preferences, such as whether you should be kept on life support. This is commonly referred to as a “living will”.

How do I make a valid power of attorney?

It is a simple document, usually prepared by a solicitor. For an enduring power of attorney to be valid, it must be explained to you by a solicitor or other qualified person who must sign a certificate on the document.

For more information, contact Stephen LynchPhoebe Mayson or Emily Priestley.





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