The Powers of Attorney Act 2014 (‘POAA’) commenced on 1 September 2015. Under this Act, the following documents may be signed:-
• General Non-Enduring Power of Attorney
• Enduring Power of Attorney for personal and or financial matters
• Supportive Power of Attorney for personal and or financial matters
There has been no change to the Medical Treatment Act 1988 under which an Enduring Power of Attorney (Medical Treatment) may be signed.
Documents previously signed remain valid. However, from 1 September 2015, any new documents must be made under the POAA.
Enduring Power of Attorney
The Enduring Power of Attorney is the most common document and the commentary that follows relates to the Enduring Power of Attorney (‘EPOA’).
Who may be appointed?
The person appointing an attorney is now known as the ‘principal’ (previously, the ‘donor’). The principal can appoint anyone that they trust, excluding the following:-
• Anyone under the age of 18;
• Anyone that is an insolvent under administration;
• A care worker, health provider or accommodation provider for the principal.
An attorney appointed for financial matters must also not have been convicted or found guilty of an offence involving dishonesty (unless such matter is disclosed to the principal and recorded in the EPOA document).
What can the Attorneys do?
Under an EPOA, a principal may authorise an attorney to do anything on behalf of the principal that the principal may lawfully appoint the attorney to do.
The EPOA can be for personal or financial matters or both. These terms are defined in section 3 of the POAA with examples given.
‘Financial matter’ means ‘any matter relating to the principal’s financial or property affairs, and includes any legal matter’ relating to such affairs. Examples include paying expenses and debts for the principal, receiving money due to the principal, performing contracts on behalf of the principal and insuring or preserving property.
‘Personal matter’ means ‘any matter relating to the principal’s personal or lifestyle affairs, and includes any legal matter’ relating to such affairs. Examples include determining where and with whom the principal lives, daily living issues such as diet and dress and health care matters.
What Can’t Attorneys Do?
The POAA lists specific matters that an attorney cannot do for a principal. These include:-
• Make or revoke a Will for the principal;
• Make or revoke an EPOA for the principal;
• Vote on the principal’s behalf in an election;
• Consent to marriage or dissolution of marriage;
• Manage the estate of the principal on the death of the principal.
The EPOA document itself may also specify specific conditions or instructions on the exercise of the power.
The principal may appoint more than one attorney. The attorneys can be appointed for different matters (e.g. one for financial matters and one for personal matters) or for the same matters. Attorneys can also be appointed to act in different manners, for example:-
• Joint Attorneys – all attorneys must agree on decisions
• Several Attorneys – each attorney must make decisions separately
• Joint and Several Attorneys – the attorneys can all agree (and all then sign) or an attorney can act alone (and sign alone) or one or more can agree (and the ones in agreement sign)
• Majority Attorneys – more than half of the attorneys must agree
The POAA also allows the appointment of alternative attorneys. One alternative attorney can be selected for each attorney. The alternative attorney would be authorised to act in the circumstances specified in the EPOA document (or, otherwise, on the death or incapacity of the relevant attorney).
Under the EPOA document, the principal can specify that the attorney start making decisions:-
• When the principal ceases to have decision making capacity; or
• Upon a specified time, circumstances or occasion.
The principal can also specify different start times for different matters.
Signing and Witnessing
There are specific witnessing requirements. We recommend that the EPOA be signed at our Office to ensure that the requirements are met. If you are unable to attend our Office we can assist in ensuring that the EPOA is signed correctly.
As well as having the correct witnesses, the witnesses must each certify that:-
• The principal appeared to freely and voluntarily sign the EPOA in the presence of the witness; and
• At the time of signing, the principal appeared to have decision making capacity in relation to making the EPOA.
Acceptance by Attorneys
The EPOA will be effective once the appointed attorneys have signed a valid statement of acceptance of the appointment.
The attorney must state that he/she:-
• Is eligible to be appointed as an attorney;
• Understands the obligations of an attorney and the consequences of failing to comply with those obligations;
• Undertakes to act in accordance with the provisions of the POAA.
The signature of the attorney must be witnessed by a person over the age of 18 years.
Similar statements of acceptance must be signed by any alternative attorneys.
The decision to appoint an attorney is an important one and requires careful thought. We recommend that you discuss your options with a trained, legal professional. If you would like to know more about signing an Enduring Power of Attorney, please make an appointment to discuss this matter with Jo McCormack.