WILLS & ESTATES QUEENSLAND 
Powers of attorney

 

In some circumstances - such as a prolonged absence, illness or mental incapacity, for example - you may need to authorise a close friend or family member to make decisions - about assets or medical care, for example - or to sign documents on your behalf. This authority is called a power of attorney.

There are various types of powers of attorney that may be used in different circumstances including financial powers of attorney, medical powers of attorney and enduring powers of attorney.

If you anticipate or find yourself in circumstances where you might need to appoint a close friend or family member as your attorney, We can help.

Our dedicated wills, probate and estate litigation practice can help ensure that decisions about powers of attorney are made carefully and sensitively, that your needs are met and that the power of attorney is legally valid in your state.

What happens to my assets if I am unable to manage my financial affairs?

You are the only person who has the right to make decisions about your assets. This means that if you are ever unable (for whatever reason) to manage your own financial affairs, your assets will be effectively frozen unless:

  • You have previously authorised another person to look after your finances on your behalf by signing a power of attorney, or
  • Another person applies to the relevant court or tribunal for an order allowing him or her to handle your finances
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What is a general power of attorney?

A general power of attorney allows your attorney to act on your behalf in relation to any financial transactions.

It can be useful to ensure that during temporary absences such as overseas travel your financial affairs are being looked after. However, if you become incapable of providing your attorney with clear instructions this document will automatically become invalid.

What is an enduring power of attorney?

An enduring power of attorney continues to apply even when you are no longer capable of making decisions or providing your attorney with instructions.

This can be useful to cover potential future permanent problems such as mental or physical incapacity. In that event, your attorney will become your financial 'guardian' and conduct your financial affairs on your behalf.

It is important to remember that an enduring power of attorney is legally effective from the moment that you sign it, unless restricted by you.

This means that the signature of your attorney is accepted by all organisations such as banks, on presentation of the power of attorney - even if you are still capable of managing your own affairs and you do not wish your attorney to act on your behalf.

You should therefore think very carefully about whom you wish to appoint as your attorney, as unscrupulous persons can act fraudulently and it may be very difficult to recover assets misappropriated by your attorney.

What do medical powers of attorney cover?

In a medical emergency, doctors do not need to get consent for your treatment. However, in a non-emergency situation, doctors will often ask for your consent prior to treating you.

An 'enduring power of attorney (medical treatment)' will allow you to appoint someone to make medical decisions when you are no longer capable of making such decisions personally. You may appoint anyone you like.

It is important to note that an enduring power of attorney (medical treatment) does not permit your attorney to refuse you reasonable medical procedures for the relief of pain, suffering and discomfort or the reasonable provision of food and water. Although your attorney can refuse other forms of treatment.