The power of attorney is an important and powerful legal tool. It allows you to appoint a trusted person to act on your behalf in relation to your legal and financial affairs when you are temporarily or permanently incapacitated. Some recent changes to the forms used to appoint a power of attorney clarify certain aspects of the process of appointment.
What is a power of attorney?
The two main powers of attorney are ‘general’ and ‘enduring’. Deciding which type is best for you will depend on your circumstances and what you require from your attorney.
A general power of attorney is more suitable for short term situations in which you may be unavailable to make property and financial decisions. However, it expires if you lose mental capacity. An enduring power of attorney on the other hand continues to operate if you are rendered permanently incapable of dealing with your business affairs.
For more information regarding powers of attorney please see – ‘Do I need a power of attorney’?
What are the changes?
Until recently, all appointments of powers of attorney were made using the same form. As of 13 September 2013, general and enduring powers of attorney are now appointed using separate forms to avoid confusion as to the types of appointment being made. The new forms provide background information and helpful directions for completion to assist in correctly filling out the documents.
Significantly, the forms now allow you to appoint a substitute attorney in case your primary choice is unable or unwilling to be your attorney. This means you are no longer required to create separate documents for the primary and substitute attorney.
For the enduring power of attorney form, both the original AND any substitute attorney appointed in an enduring power of attorney must sign the form before it becomes active. No signature of the attorney is required to activate the general power of attorney.
In addition, if an attorney who has been appointed jointly with others vacates their position, the power will not automatically terminate. The new forms allow you to specify whether you want the power to continue to be effective in such an event.
What about my existing power of attorney?
Don’t panic if you appointed an attorney before 13 September 2013 using the old form; it is still valid. However, it is prudent to update your power of attorney to ensure its continued validity.
It is highly recommended that you use the Statutory forms to appoint a power of attorney. A power of attorney using another form or written by yourself runs the risk of invalidity for failure to comply with regulatory requirements. In addition it is mandatory to use the new form when registering a power of attorney at the Land and Property Information Office. After 1 March 2014, it will no longer accept the old form.
If you need assistance in creating a power of attorney please contact us.