Powers of attorney are legal documents, which authorise another person to make decisions on your behalf.  State governments have developed templates which should be used to creating any power of attorney document.

General Power of Attorney

A general power of attorney  is used to authorise another person to make financial decisions for you in relation to a specific event or during a specific period of time.  For example, if you are travelling to a remote area without communication technology, but you will need to sign a contract  while you are away, you could authorise a general attorney to sign the contract on your behalf.

Enduring Power of Attorney

An enduring power of attorney  is similar to a general power of attorney, but:

  • your attorney can make not only financial, but also personal life choice decisions on your behalf.  “Personal decisions” include decisions relating to your health care, your safety, where you will live and with whom, and the services you will receive such as home-help, transport services and other social assistance,
  • you can elect when the authority to make financial decisions starts.  It can be immediately on you signing the document, at a specific date in the future, or when you lose mental capacity to act for yourself.
  • the authority to make personal decisions only commences when you lose capacity to make decisions regarding your person life choices.
  • An enduring power of attorney continues indefinitely, until you formally revoke it, or die.

Many Enduring Power of Attorney documents are created in conjunction with an Advance Health Care Plan.

 When do you have mental capacity to act for yourself?

The decision regarding whether a person has mental capacity sufficient to sign a legal power of attorney document, is based on legal tests, guided by medical advice.   Essentially, a person has mental capacity if they understand the type of document they are signing, and the impact that document will have once signed.

If questions are raised regarding whether a person had the mental capacity to create a power of attorney, then a court will be asked to decide the question.

Some find the government templates that should be used to create these documents confusing and complicated.  While you may consider completing the forms yourself (available on the government’s website), given the importance of getting the terms of a Power of Attorney “right”, it is essential to seek profession support. If you need help to create a Power of Attorney document  contact Faileen James, who has extensive experience in this area.  Faileen’s nursing skills also enables her to expertly consider any questions about a person’s mental capacity to make a power of attorney.

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