Considerations for assigning Power of Attorney

Date: Oct 28, 2015

Much of the wills and estates discussion process will centre on creating a will that adequately provides for your family and friends in the event of your passing. They're critical documents that you may want to consider.

However, there is one area that you will also need to seriously consider: a Power of Attorney.

A brief background on Powers of Attorney

These are the legal documents that detail a person you appoint to manage your assets and affairs while you are still alive, and if it is an Enduring Power of Attorney, the attorney can manage your assets and affairs even if you can no longer make these decisions yourself. A Power of Attorney ceases when you pass away, at which point an executor (named in your will) becomes responsible for administering your estate.

Powers of Attorney are useful legal documents in a number of circumstances. For example, you may be travelling overseas, but still have financial commitments that require your attention in Australia. Instead of handling these affairs remotely, an individual or organisation you've appointed will instead manage them for you.

A Power of Attorney is also useful in the event you become unwell and managing your affairs becomes too difficult. If you become completely unable to manage your financial affairs, an Enduring Power of Attorney means the individual or organisation can continue management of your affairs.

Creating the document

As appointing a Power of Attorney requires the creation of a formal document, you will need to follow a process.

  1. You firstly sign a form that appoints another person as the attorney. This is where you will decide what powers the attorney has, whether the power is to make all decisions, or only some decisions, whether they can confer benefits on themselves, whether the power will continue to operate even if you are unable to make decisions yourself etc.
  2. Your attorney (the appointed trustee or organisation) then signs the document under the acceptance section, to signify that they agree.The Powers of Attorney legislation requires completion of a prescribed witness certificate. This is a form that needs to be completed by a third party. These parties include solicitors or barristers, registrars of a NSW Local Court and others. It sets out that the prescribed witness has explained to form to the person giving the Power of Attorney. 

It is a good idea to consider making a Power of Attorney, as it is one of the most effective ways to avoid burdening your family and friends with your financial affairs.

Reach out to professional wills and estates lawyers to learn more about the intricacies of a Power of Attorney, and the various other considerations with regards to estate planning.