Why is a Power of Attorney Needed?
Having a Power of Attorney (POA) can be extremely useful in a range of circumstances. You (the Principal) may want a Power of Attorney incase of an unfortunate event in which something happens to you and you suffer incapacity. Alternatively, you may simply have a Power of Attorney for times you are away and would like someone (the Attorney) to make decisions on your behalf. A Power of Attorney can be General of Enduring.
Power of Attorney
A POA is a legal document that gives a person the power to make legal or financial decisions for you. They may also make other decisions with respect to your assets. lifestyle and health decisions are outside the scope of a POA and must be left to a legal guardian.
Scope of a General Power of Attorney
A General POA is a legal document that enables you to pick an attorney to make decisions on your behalf. Subsequently the attorney is able to make decisions on your behalf regarding financial and legal matters, as well as decisions in relation to your assets. Here, they may make decisions to buy or sell shares, real estate or other assets. Unlike with an Enduring POA, if you lose mental capacity after the appointment of a General POA it ceases. Essentially, a General POA can only exist as long as you are able to make decisions for yourself. You are also able to set specific limitations and conditions on the attorney as you see fit.
Scope of an Enduring Power of Attorney
Similarly to a General POA, an Enduring POA confers the Attorney with the power to make decisions in relation to financial and legal matters, as well as asset based decisions, on your behalf. The overarching difference is that the powers conferred in an Enduring Power of Attorney continue in circumstances where you lose your mental capacity to make decisions on your own behalf. So, in the unfortunate event of a serious accident which results in incapacitation, or the development of a disability such as dementia, your Attorney is able to continue to make decisions in your best interests. This may include the operation of your financial accounts or the sale of large assets. The scope of an Enduring POA may differ in jurisdictions outside of NSW. In Queensland for example, attorney’s are able to make personal decisions on behalf of the principal.
Key Takeaways
A POA can be useful in a diverse range of situations. General and Enduring POAs confer the attorney with significant powers over your financial and legal affairs. General POAs are more limited due to the fact they cease once you lose mental capacity.
Adam works with our content team while he completes his law degree at UTS. He is interested in corporate law, banking and finance law and discrimination law.
Phil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.
