There is an increasing need to become self-reliant and responsible in planning for your future as it is not possible to anticipate all the challenges that you may face – at any age. Severe mental illness or the need to be out of the country are just some of the things that may affect your ability to make decisions for yourself. Certain laws allow you to plan for the future by providing you with ways of making wishes known to others. In South Australia, you (the “donor”) may convey your wishes and authorise someone to manage your financial and legal affairs by appointing someone to be your attorney pursuant to the Powers of Attorney and Agency Act 1984 (“the Act”).
General Power of Attorney versus Enduring Power of Attorney
The Act covers two different forms of powers of attorney, ‘General’ and ‘Enduring’. They both have similarities but there are some important differences:
- A general power of attorney is an authority given to a person (called the “attorney”) to manage and deal with your financial and legal affairs such as the authority to sell property, the authority to manage investments and the authority to access your bank account to pay your bills, in the event that you are unable to do so because you are overseas. A general power of attorney ceases to operate on you being legally incapacitated.
- An enduring power of attorney operates by giving your attorney the right to deal with your financial and legal affairs even in the event that you become legally incapacitated. For example if you are unable to communicate after a stroke, or you become senile.
Can an Attorney Delegate his or her Power?
A power of attorney is personal and therefore only those persons whom you have appointed as your attorney are able to exercise the powers given to them. In other words, your attorney cannot delegate his or her powers to someone else. If you are acting as a trustee or personal representative for another person, you cannot use a power of attorney to pass on your role as trustee or personal representative to someone else.
When Does Your Power of Attorney Cease to Operate?
Your power of attorney ceases to operate:
- on your death; or
- on the revocation of the appointment; or
- in the case where the power of attorney is a general power of attorney, if you become legally incapacitated.
Guide for Your Attorney
Although the law doesn’t require your attorney to tell your family members about the decisions they are making, there are general guidelines that your attorney ought to be aware of because he or she can be held personally and criminally liable for any losses incurred by acting improperly. The following points are general guidelines that may benefit anyone who has authority under a Power of Attorney:
- Obey the instructions by not exercising any powers beyond those set out in the power of attorney document.
- Observe any limitations or conditions placed on the authority, and act accordingly.
- Keep written notes of any verbal instructions given or wishes conveyed by the donor. This will provide an explanation for, or confirm a decision or action that an attorney may later be required to defend.
- Similarly if there are reasons why a decision was reached or a certain action was decided make a note of them. These notes may be invaluable if called upon later to demonstrate that proper consideration was given to all the options or as a reminder of specific circumstances that resulted in one course of action being adopted over another.
- Keep and preserve accurate records and accounts of all dealings and transactions made in pursuance of the power.
- Act in the best interests of the donor as other people such as the donor’s family members may disagree with the attorney’s actions and may challenge those actions. There may be times when it is necessary to consult with the donor’s family members before a particular course of action is taken.
- Maintain professional objectivity by ensuring that the actions of the attorney do not conflict with the interests of the donor.
- Respect the confidentiality, relationships, values, culture and language of the donor.
- An attorney cannot be paid for the work they do, except for out of pocket expenses directly connected with carrying out his or her duties as an attorney. Receipts should be kept to prove the costs incurred to enable reimbursement.
Keep your Power of Attorney document in a Safe Place
Once you have drawn up a power of attorney, the document should be stored in a safe place. It is suggested that you tell your family, close friends or financial/legal advisers where the original document is kept with a certified copy of the power of attorney document provided to your attorney.
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This article is posted in Adelaide, South Australia by Tri-meridian Corporate & Commercial Law and is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. We do not accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your professional adviser.
