What is a Power of Attorney?

A Power of Attorney is a legal document that appoints a person as your agent to act on your behalf. A Power of Attorney allows your Attorney to act on your behalf immediately after the document is signed. In order for your Attorney to continue to act in the event you become mentally incapable of managing your own affairs, you will require an Enduring Power of Attorney. An Enduring Power of Attorney specifically states that your Attorney can act on your behalf even after you lose your legal capacity. A Power of Attorney can be very general or it can apply only to specific situation ie. The purchase of a house.

What can my Attorney do?

Generally speaking, your Attorney can manage your financial affairs in the same way that you would be able to manage them. However, in your Power of Attorney, you can restrict the ability of your Attorney to act in certain situations, or you can stipulate only specific instances when your Attorney can act on your behalf. Your Attorney has a legal duty to handle your affairs in a way that protects your best interest. Your Attorney does not own your property; rather he or she will hold your property in trust for you. This way, you maintain ownership of your property even in the event you are no longer legally capable of managing it. Your Attorney may be called upon by the Court to provide an accounting of your finances if a person with an interest in your Estate makes an Application to the Court.

If you are selling your house but will be unable to sign the necessary documents (ie. if you are out of the country), a Power of Attorney can allow another person to sign the documents on your behalf. In that circumstance, you would have a limited Power of Attorney that may only be used in that one situation.
If you are concerned that you will lose your legal capacity, whether by way of an illness or otherwise, a Power of Attorney may give you peace of mind in that you have appointed a person you trust to manage your affairs when you can no longer legally manage them yourself.

Who can be my Attorney?

Your Attorney should be a person that you trust and that is willing to take on the responsibility of handling your affairs. Your Attorney must be at least 19 years of age and must be legally capable of managing your affairs. You may also appoint more than one Attorney. If you choose to appoint more than one Attorney, you should consider whether you want them to be able to act separately or if you want them to only act where they both agree. If you require both Attorneys to agree before action can be taken, both of your Attorneys must be present to complete an action. This may be problematic where your Attorneys do not both live in the same place.

What happens if I don’t have a Power of Attorney?

If you do not have a Power of Attorney and you become incapable of managing your affairs, there is no one who can immediately assume responsibility for your financial affairs. A family member would have to make an Application to the Court in order to be appointed as your Guardian and/or Guardian of your property.

Will my Power of Attorney be valid after I die?

No. Your Power of Attorney is only valid as long as you are alive. When you die, the person named as the Executor of your Estate will manage your Estate. If you do not have a Will, the Court can appoint someone to deal with your Estate.