Appointing an attorney

Your appointed attorney:

must be	must not be
over 18 years of age	your paid carer or health care provider
someone you trust	bankrupt
able to understand fully what the appointment means	your service provider for residential service where you are a resident (eg retirement village)
capable of looking after your affairs

Types of powers of attorney

General power of attorney

A general power of attorney is often used in a business context by a corporation or an individual. It can authorise your attorney to deal with your financial affairs. It comes into effect on the date you elect (ie it is not dependent on you losing the capacity to make decisions). It may limit the extent to which your attorney may deal with your affairs. A general power of attorney is normally used for the purchase and sale of land (eg while you are overseas).

Enduring power of attorney

Under an enduring power of attorney (EPA), you may give your attorney the power to deal with all or any part of your financial, personal and health matters. An EPA for financial matters can come into effect either immediately when you lose capacity, or on a specific date or at a specific event. There are a number of other considerations regarding this decision. It is advisable to obtain legal advice to ensure your choice is fully informed.

If your attorney under an EPA acts in conflict of their duties and your interests (eg in financial relationships), they would enter a ‘conflict transaction’ which they can only do if you authorise such a transaction. It is best to discuss this with your solicitor.

Revoking an enduring power of attorney

Your EPA is automatically revoked:

• on your death
• when you marry, unless your new spouse is your existing attorney
• when you divorce, if your attorney was your spouse
• when you appoint a new attorney
• if your attorney dies or loses decision-making capacity
• if your attorney becomes unqualified, for example, bankrupt or a paid health care provider.

You can choose to revoke your EPA at any time providing you have capacity and understand what you are doing. Your solicitor can advise you on the procedures to follow.

Legal costs

Just as estates vary in size and complexity, the legal costs to prepare a will and power of attorney will differ. At your first appointment, ask your solicitor about the costs involved.