Choosing the right power of attorney

Date: Jul 12, 2012

During the estate planning process, there are all sorts of things you will need to consider, with power of attorney being one of them.

There are two types to choose from - a general or enduring power of attorney - both of which need careful thought before being appointed.

By appointing a general power of attorney, you will be giving control to an individual for a specific period of time, during which they can make financial or legal decisions on your behalf.

However, it is worth noting that should you lose mental capacity, this person will no longer have this power.

To overcome this obstacle you may wish to establish an enduring power of attorney, who has the jurisdiction to make decisions after you have lost mental capacity.

In order for this to happen, it needs to be clearly stated that you want this to happen, while the attorney will have to sign a form saying they consent to the situation.

Unlike general power of attorney, this will not begin to operate until the attorney has signed the necessary documents.

Your signature needs to be seen by a prescribed witness, who is required to sign a certificate on the form saying that they explained the enduring power of attorney to you.

They also have to testify to the fact that you appeared to know what the implications of the document were.

A prescribed witness must be a solicitor, registrar of a local court, barrister, licensed conveyancer, employee of the Public Trustee or employee of a trustee company.

With the general power of attorney, however, your signature needs only to be witnessed by a person over the age of 18.

Selecting the person you wish to act as your attorney in either instance is an important decision that should not be taken lightly.

By law, you can choose anyone over the age of 18, such as a friend or family member, although it is possible to appoint the Public Trustee for a charge if nobody is suitable.

They will need to agree to taking on the role and it is possible to appoint more than one attorney, but you must stipulate whether you want them to work jointly or not when making decisions.

When compiling the documents, you can state the limits you want to impose on the power of attorney to make sure your wishes are met as best as possible.