How to decide who should have power of attorney

Date: Aug 31, 2015

One of the most important decisions you'll have to make in wills and estate planning is who should have enduring power of attorney. However, many people who are preparing a will simply do not invest the required amount of thought into to appointing an attorney.

So what duties does someone with enduring power of attorney have over your estate, and what qualities should they possess before you decide to pick someone to fill this important role?

What duties does someone with enduring power of attorney have?

Power of attorney is simply a legal document that appoints someone and authorises them to act on your behalf.

For estate planning, it is particularly important in the areas of property and financial management to have someone who can be empowered to make important decisions on your behalf.

Enduring power of attorney does not authorise the person to make other important decisions for you while you are still alive. Only if you are incapable of making decisions for yourself will matters such as lifestyle, health or personal affairs be covered by enduring power of attorney.

What qualities should one possess?

You should appoint someone you trust and who you can expect to act according to your wishes. Because enduring power of attorney means that someone will have full authority to deal with your affairs, it is important that you know they will carry out your wishes.

Nominating someone who is known to be trustworthy is a good idea. Also if possible, having an attorney who is financially astute may be helpful with estates that might have a lot of assets.

The person must always act in good faith and tell you of any conflict of interest they may have before you appoint them, or if circumstances change after you made your appointment.

How do I pick one?

Powers of attorney laws are dependent on which geographical area you are in. In some states or territories, they may refer to just financial powers. In others, they can include wider guardianship powers.

Once you have decided who you want to have enduring power of attorney after your death, a legal document appointing them the attorney will need to be created. This document will also need to contain what powers you are giving them instructions about what you would like them to do.

Before a person can receive enduring power of attorney, they have to "accept" their role, so make sure you have discussed the matter with them before you make the decision official.

It is always advisable to have any enduring power of attorney matters prepared by a qualified estate lawyer.