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Estate Planning

Powers of Attorney

Everyone likes to be in control of the decisions that they make. However, sometimes events happen which mean we lose the control we previously had.  These can be simple problems such as being overseas and unable to attend to your financial affairs, or more serious problems such as losing the ability to manage your own affairs as a result of an illness or accident.

An enduring power of attorney is a document under which a person (the “principal” or “donor”) gives to another (the” attorney” or “donee”) the power to act of their behalf.  As the name suggests, the power will continue beyond (Endure)  the time that the principal  becomes of unsound mind and is unable to conduct his or her own affairs.

An enduring power of attorney may cover the following types of decisions:

financial – for example, the payment of bills and investment decisions. You may nominate when the power is to begin and if no specific date is nominated on the document it commences at the time of the signing of the document.

personal -  for example, where and with whom you live, and day-to-day issues such as diet and dress. Your attorney’s power to make personal decisions does not begin until (if ever) you are incapable of understanding the nature and foreseeing the effects of your actions, and of communicating that decision.

health – for example, whether to consent to an operation. Your attorney’s power to make health decisions does not begin until (if ever) you are incapable of understanding the nature and foreseeing the effects of any decision, and of communicating that decision. You will note that the power to make health care decisions does not extent to matters of “special health” such as pregnancy termination and certain psychiatric illnesses, or medical conditions that require the execution of an Australian Health Directive.

The decision making power of attorney can be restricted. You can specify what you do not wish your attorney to make. Further, the attorney’s power will cease to be effective if it is revoked or upon the death of the principal.

Please note that the laws governing powers of attorney are different in each "State" and therefore it is extremely important to consult a lawyer or conveyancer when making a power of attorney.

An Advance Health Directive is a legal document that allows you to give directions about your future health care with respect to particular medical conditions and the types of treatment that you do or do not want to receive.

The types of medical conditions covered by the directive must be threatening in nature and include conditions where the principal;

  • has a terminal illness
  • is in a persistent vegetative state
  • is permanently unconscious

Provided that the medical condition is life threatening in nature, you can direct that the attorney to withdraw or withhold life threatening medical treatment. These instructions will override any other powers of your attorney, general or specific.

The directive only comes into effect once you have lost the capacity to make your health care decisions, such as being in a coma.