Enduring Power of Attorney – What Are They?
An enduring power property means that someone can manage your assets for you.
You can choose almost anyone aged over 20 for the role. However, as it is a significant responsibility, you may wish to use a professional like Public Trust. The following are some important notes to guide your property attorney. Please read them carefully so you can answer any questions they may have.
What is a property attorney authorised to do?
The person you choose as your property attorney can act on your behalf for property and financial matters.
When does the enduring power of attorney become effective?
You can choose whether it becomes effective immediately or only when you are not mentally capable of acting for yourself. Your attorney will hold the same level of authority as you in dealing with your property and financial matters. You can place restrictions on your attorney’s authority to deal with your property and financial matters. It is important that your attorney reads and understands any restrictions in the enduring power of attorney document.
Your attorney’s obligations
The obligations under the Protection of Personal and Property Rights Act 1988 (the PPPR Act) require your attorney to consult with you when using their authority, if practicable. You may also re-quire them to consult with other people, such as your personal care and welfare attorney. Your attorney can only benefit them-selves and others if you have given them permission to do so. These benefits can be loans, gifts or even professional fees. If you specify that certain people are able to see financial records and information that shows how the property attorney has used their authority, this information must be made available. Failure to do so may result in your attorney being liable for a fine of up to $1,000. Above all, your attorney must act in your best interests.
How does your attorney use their authority?
Your attorney will need to check if their authority as property attorney can be used immediately or only in a situation where you are not mentally capable of acting for yourself.
If their authority can be used immediately, they will need to discuss your instructions with you prior to dealing with your property. If your attorney can only act if you are not mentally capable, they must first obtain a medical certificate from a doctor whose scope of practice includes the assessment of a person’s mental capacity. If their authority extends to their ability to make a will on your behalf after you have lost mental capacity, the Family Court will need to consent to the terms of the will first.
Sometimes the authority is given to two or more attorneys. If this authority is joint, both attorneys must agree about performing the actions.
When the authority is used, the financial institution or agency your attorney is dealing with will need a certified copy of the power of attorney together with a declaration of non-revocation declaring that their authority to act as your attorney has not been withdrawn.
What if your attorney no longer wishes to assume their role as property attorney?
If you are mentally capable, your attorney should provide you with a written resignation from their role as attorney. If you are not mentally capable, a writ-ten resignation must be lodged with the registry of the nearest Family Court. Public Trust can help your attorney prepare these resignations.
For further information about Enduring Power of Attorney talk to the team at Public Trust on 0800 371 471 .
