When it comes to appointing a power of attorney in Australia, the power does indeed come with a lot of responsibility. Activating a power of attorney allows you, as the principal, to grant someone the power to make financial and/or legal decisions, including those regarding health matters, on your behalf. It is important to ensure that you have complete trust in the person you decide to appoint to guide you through your life, particularly for situations where your autonomy may be hindered. This Business Kitz article will act as the ultimate guide to the different types of power of attorney, what their legal duties are, how to activate one and what to do should you need to revoke one.
What are the main types of power of attorneys?
Appointing a power of attorney generally concerns the degree of control you are allowing them to have over your financial and legal affairs. The two main types of power of attorneys are:
- General power of attorney: appointed as the ‘decision-maker’ of financial matters for a period of time while you (the principal) still have the capacity to make those decisions, i.e are physically or mentally fit to do so. A general power of attorney may be used to appoint a power of attorney for a certain event or while you are away and ends when you lose the ability to make decisions. The exemption is if the power is given as security.
- Enduring power of attorney: appointed by you (the principal) to make decisions regarding personal or health matters and financial matters at a time specified within the form. This can be from a specific date, occasion; for example when you are admitted to hospital; or an immediate appointment. Unlike a general power of attorney, the power remains valid when you lose the capacity to make decisions, the person generally acts as a safeguard during any major life events.
- In the state of Victoria, there is also the option to appoint a supportive power of attorney when you have the capacity to make decisions regarding personal or legal matters but appoint someone to assist you with these decisions.
A power of attorney must be 18 years of age or older, solvent and not seeking monetary gain, has the capacity to make decisions regarding legal or financial matters, cannot be a paid carer of the principal within the last three years, or a service or health provider. As the general basis for most legal matters, it is best to find someone who does not have conflicting or personal interests.
What are the duties of a power of attorney?
In Queensland, under an enduring document, an enduring power of attorney must comply with the General Principles and Health Care Principles set out under the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998. A power of attorney must exercise fundamental human rights, act out of respect for the adult’s privacy, cultural beliefs, liberty and security, support current relationships and recognise the adult’s wishes. They must also abide by any instructions given by the adult’s health care provider or medical professional. A power of attorney must also meet the Queensland Capacity Assessment Guidelines 2020 to ensure they are sound and capable of making decisions on the principal’s behalf. If the principal loses the ability to make decisions, it is expected that the person who does this for them is their most trusted and qualified ‘right hand man’.
How do I activate a power of attorney?
An attorney is appointed through the formation of a legal document and form submitted to the state government. To appoint an enduring power of attorney to make decisions regarding personal or financial matters only, or the same person for both, you will need to fill out a dedicated short form (form 2). A long form (form 3) is required for appointing multiple different powers of attorney for personal and financial matters. Before you complete a legal document, it is important to refer to the enduring power of attorney explanatory guide (form 9) to feel secure and confident in your decision. The form must then be signed by the principal in the presence of a qualified witness such as a justice of the peace, notary public, lawyer or commissioner of declarations before being signed by the power of attorney to accept and active the appointment and make the document legally binding.
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What do I do if I want to cancel a power of attorney?
If you wish to cancel an enduring power of attorney while you have the capacity to make this sort of decision, this can be done through the revocation of enduring power of attorney (form 6), where all attorneys must be reasonably advised of the revocation. If also registered with the Queensland Titles Registry, your revocation of the enduring power of attorney should be registered by lodging another request to register power of attorney (form 16) with a copy of (form 6).
If your attorney does not act with respect to your wishes and fails their obligations and duties, they could face criminal liability, compensation payment, or other remedies such as producing audits or accounts. If you find yourself having issues with your power of attorney, or need some guidance through any stage of the process, we recommend seeking legal advice through our sister company, Legal Kitz. You can book a free 30-minute consultation with their experienced and highly qualified team via our website now. If you are in need of legal templates to protect your business matters, Business Kitz has a range of customisable documents to get you started.