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Legal Tip 73: The 2 types of Powers of Attorney

Discussion in 'Legal Issues' started by Terry_w, 30th Aug, 2015.

  1. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    One person can give another person(s) legal authority to act on their behalf. The principal can appoint an attorney. In NSW this is governed by the Powers of Attorney Act 2003
    see http://www5.austlii.edu.au/au/legis/nsw/consol_act/poaa2003240/


    Appointment of an attorney will mean the attorney can act on your behalf for financial matters such as operating bank accounts, entering contracts etc. The attorney can do anything you can do subject to the limitations imposed by the legislation and by the deed of appointment.

    In NSW and most other states there are 2 types of appointments
    - General Power of attorney, and
    - Enduring Power of Attorney.

    The general appointment is often done for a specific period and/or for a certain event. A son may appoint a parent as attorney so they can bid at auction for them while they are overseas for example. The general power of attorney, in NSW, will cease to operate if the principal were to lose capacity.

    Only an enduring power of attorney can operate once capacity has been lost. In NSW it needs to be witnessed and explained by a solicitor or other authorised person.

    Everyone should have considered appointing someone an enduring attorney just in case of accident. Without an attorney can application would need to be made to the guardianship tribunal (who have a different name now) or the Supreme Court and this can be costly and time consuming and the application could be challenged by different family members - parents and defactos seem to fight it out occasionally.

    Appointments can be restricted when they are effective - could start on signing or on some other event such as losing capacity.

    And don’t forget to review your appointments every year or so as relationships change and people such as parents get older.
     
    Scott No Mates and Tekoz like this.
  2. KateAshmor

    KateAshmor Victorian conveyancing lawyer Business Member

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    25th Jun, 2015
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    Melbourne
    From 1 September 2015 (tomorrow!), new Power of Attorney laws come into affect in Victoria.

    The enduring power of attorney (financial) and power of guardianship will merge into the one enduring power of attorney.

    General powers of attorney will be called general non-enduring powers of attorney.

    Powers of Attorney made under existing legislation will remain valid under the changes.

    The Act does not affect enduring powers of attorney (medical treatment), which will continue to be regulated separately under the Medical Treatment Act 1988.
     
  3. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    That was good timing then!