I don’t need a Power of Attorney, I have joint bank accounts

This is one common misconception regarding powers of attorney described by clients of Morrows Legal which we are required to dispel. They are totally different things. A joint bank account allows both parties to access it and transact. A power of attorney is a legal document authorising a person nominated by you to act on your behalf in accordance with your instructions.

There are a number of different forms of powers of attorney:

General Non-Enduring Power of Attorney

A general non-enduring power of attorney allows you to appoint one or more people to make financial decisions. They are particularly useful for situations where you may be unavailable or out of the country and are unable to manage your financial affairs.  They are often used for a specific purpose and for a fixed period of time and not generally for future planning.  For example, you may go on a holiday but require someone in your absence to contact utility companies to manage bills, or may be oversees when finalising the sale or settlement of real estate.

This type of power of attorney can be revoked at any time but will be automatically revoked upon you losing legal capacity or upon your death.

Enduring Power of Attorney (Financial and Personal)

This type of power of attorney enables you to appoint another person (or people) to make decisions about your financial and personal matters. This type of power is said to ‘endure’ beyond the loss of legal capacity.  That is, it will continue to remain in full force and effect even if you lose legal capacity.  However, should you cease to have legal capacity you will not be in a position to oversee the use of such power of attorney and will no longer be able to revoke it.

The powers conferred on an attorney for financial matters include the power to buy and sell real estate, shares and other assets on your behalf, to operate your bank accounts and to spend your money on your behalf.  The power of attorney also relates to personal matters which are matters relating to your own lifestyle including your place of residence. You are at liberty to restrict these powers if you wish, but the restrictions must be set out in the document.

You are able to nominate when the power of your attorney is to commence.

This can be either:

1. Immediately;
2. When you cease to have legal capacity; or
3. Upon the occurrence of another specific event.

Further, you are able to nominate more than one attorney to act on your behalf.  In circumstances where multiple attorneys are appointed under an enduring power of attorney (financial & personal), you are also able to specify how decisions are to be made by your attorneys.  Where multiple attorneys are appointed, these options are:

1. Jointly – the attorneys must make decisions together;
2. Severally – each attorney can make decisions separately;
3. Jointly and severally – the attorneys can make decisions separately but if they are to make a decision together, they must agree; or
4. By majority – where there are more than two attorneys, decisions are only made when more than half of the attorneys agree.

Guardianship & Administration Order if no Enduring Power of Attorney (Financial & Personal) is in place

If, in the event of your incapacity, you do not have an enduring power of attorney (financial & personal) in place and require somebody to make decisions on your behalf, an application to the Victorian Civil & Administrative Tribunal (VCAT) will need to be made for a guardianship and administration order.  An application of this nature involves appointing a substitute decision-maker where there is a need to do so and when it is in the best interests of an adult with a disability who is unable to make reasonable judgments about their personal and/or financial affairs.

Similar to enduring powers of attorney, there are two types of appointment:

1. Administrator – to make financial and legal decisions; and
2. Guardian – to make personal lifestyle decisions.

Unfortunately, any person can lodge an application for an order if they have concerns regarding the decision-making ability of a person with a legal disability. Further, any person can be appointed as guardian or administrator if they are willing to do so and no conflict of interest exists.  Most applications are made by family members however, if family members are not able to agree on who is to be appointed, the VCAT will likely appoint a third party in those circumstances.

Therefore, the benefit of preparing an enduring power of attorney (financial & personal) is that each individual can have the control of appointing who will be responsible for making decisions about financial and personal matters if they are to ever lose legal capacity.

Enduring Power of Attorney (Medical Treatment)

An enduring power of attorney of this type confers on your attorney (agent) the authority to make decisions about appropriate medical treatment when you are unable to make these decisions for yourself.  The term “medical treatment” is defined under the Medical Treatment Act 1988 (Vic) to mean the carrying out of:

(a) An operation;

(b) The administration of a drug or other like substance; or

(c) Any other medical procedure (excluding palliative care).

An enduring power of attorney of this nature also gives your agent the right to refuse a medical treatment in certain circumstances.

Such powers of attorney given to an alternate agent authorises the alternate agent to make decisions about medical treatment if, and only if, not more than 7 days before making the decision, the alternate agent completes and produces to your attending medical practitioner and primary agent, a statutory declaration:

1. Giving details of enquiries or information which forms the basis for the statement of belief
2. Stating that, as a result of those enquiries or that information, the alternate agent believes the primary agent is dead, incompetent or cannot be contacted, or that the primary agent’s whereabouts are unknown.

If you wish our office to prepare new enduring powers of attorney (medical treatment) on your behalf, please provide our office with the following information:

1. The name and address of each of your proposed principal attorneys; and
2. The name and address of each of your proposed alternate attorneys.

Supportive Attorney Appointment

A Supportive Attorney Appointment is a less frequently used legal document as the powers conferred upon an attorney place limitations upon their possible actions.  An appointment of this nature allows a supportive attorney to have all or any of the following three powers to support you making decisions about financial and personal matters.

These three powers are:

Information power

This power authorises organisations (such as banks, utility providers and health care providers) to disclose personal information about you to your supportive attorney.

Communication power

This power enables a supportive attorney to communicate your decisions and authorises organisations to rely upon information provided by a supportive attorney as being information (or a decision) provided directly by you.

Power to give effect to decisions

This power authorises a supportive attorney to take any reasonable action to give effect to a supported decision including executing documents on your behalf or paying nominal processing fees.

We note a supportive attorney cannot give effect to significant financial transactions including buying or selling a house, entering into a secured loan or buying or selling personal property.

Summary

Whilst the risk of an attorney acting outside of their prescribed powers will always exist, an individual can minimise the potential likelihood of such catastrophic conduct by appropriately understanding and considering the true value of each of these documents.

At Morrows Legal we strive to provide our clients with accurate and up-to-date information regarding their options in order that future planning can be as simple and effective as possible.

We apply our significant knowledge learned from practical real life examples to assist you to get the best outcomes.

If you would like to discuss the preparation of any of these documents or if you have questions regarding the same, please feel free to contact Steven Jell at our office on 9690 5700 or email sjell@morrows.com.au