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Power of Attorney

It is a common misconception that Enduring Powers of Attorney are for people with dementia. Whilst they can and do have a role to play for people who have lost the capacity to make decisions for themselves there are other uses for them as well.

Powers of Attorney fall into two categories:

General Powers of Attorney (GPOA); and
Enduring Powers of Attorney (EPOA).

A GPOA only allows you to appoint a person to make decisions about your financial matters and is only valid while you have mental capacity.

Enduring Power of Attorney

An EPOA is similar to a GPOA, however, an EPOA:

Will continue even after you lose capacity to make decisions for yourself; and
Permits the attorney to make personal/health decisions on your behalf as well as financial decisions.

Financial matters which your attorney can make decisions about include matters relating to your finances or property. Examples include:

Withdrawing money from or depositing money into your accounts;
Carrying on your trade or business;
Paying your debts.

This is not an exhaustive list and basically your attorney is able to do anything that you can do relating to financial matters.

Personal matters which your attorney can make decisions about include matters relating to your care, health care and/or welfare. Examples include:

Where you would live;
Who you would live with;
Consenting to certain medical treatment.

Again, the above list is not exhaustive and there are some personal/health matters that your attorney is not permitted to make on your behalf.

Your attorney’s power to make personal/health decisions on your behalf only commences when you have lost the capacity to make these decisions for yourself. For financial matters however, you are able to decide when your attorney’s power to make financial decisions begins. For example, you may specify that your attorney can make financial decisions for you immediately, when you lose capacity or on a particular occasion.

You may also include terms in the EPOA to restrict or enhance your attorney’s powers.

If you appoint more than one attorney, you can specify how decisions are to be made. For example:

Jointly;
Severally (any one of the attorneys may decide on their own);
Successively (A. can only act if B. is unwilling or unable to); or
Majority rules.

An EPOA may be useful to enable a trusted person to look after your affairs if you develop dementia, however, the benefit of an EPOA can be much more widespread than that.

An EPOA may be beneficial in a number of circumstances and if you do not have an EPOA in place, you may wish to consider speaking with your solicitor/legal practitioner to discuss whether this document may be suitable for you.

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