An Enduring Power of Attorney (POA) is a legal document. It allows you to appoint a person to make decisions about your assets. The POA deals with your assets e.g. real estate and bank accounts.
The POA is an “economic” document. Your POA does not deal with your health, medical treatment or lifestyle. To do this, instead build a Medical POA on our website. Also, the person receiving your EPA cannot:
However, the person receiving your Enduring Power of Attorney, can open and close bank accounts, pay debts, and buy and sell land. This is provided it is in your ‘best interests’ to do so.
Included in the cost of your Power of Attorney is free advice for your attorneys. Your attorneys are not alone:
Many Enduring Powers of Attorney built on governments websites do not work. Sadly, it is only after you need to use them does this become apparent.
We give you and your family ongoing support on the POA. Often when a parent loses mental capacity the children telephone us for help and assurance. For free, we explain how to use the Enduring POA and what they need to do.
This is one such example. Recently, a bank manager in Sydney kept the original POA for our client’s son (our client has dementia). The banker refused to hand back the original. Our client’s son presented our covering letter to the banker, which states that the original is to be handed back to our client’s son. The bank manager still refused to do so. A Legal Consolidated lawyer rang the bank’s legal team in Melbourne and was able to get the POA back for our client’s son. That was done at no charge because the POA was prepared by our law firms.
Further, there are unlimited updates on the POAs so they can be updated as often as you wish.
Here are some examples:
The persons you appoint walk into the bank. They present to the bank clerk with your Savings Account book and an original POA. Your bank clerk stares blankly at them. He sees his bank manager. The bank manager explains to the bank clerk that those persons “now stand in your shoes”. They can do whatever you could do with the bank account. The bank manager asks to take a copy of the POA for future reference. The bank manager tries to keep the original POA but the persons you nominate decline and get back the original POA. The transaction on the bank account takes place.
You tell the persons that you nominated, to sign a lease agreement. You are on holidays overseas and email is unavailable. Your attorney contacts the landlord. They:
You are now bound to the lease. The landlord may photocopy the POA to attach to the lease.
You can update your POA for free. If you ever want to update your POA just email us and we send you a voucher. With the voucher, you can change the POA as you want. You can update your POA as often as you wish for free.
Q: I am thinking that I want my POA to only operate ‘when I am of unsound mind‘? (I don’t want to choose ‘immediately‘.) But what if I am later stranded overseas. Can my wife use the Enduring POA to sign bank documents on my behalf?
A: With respect, this is a common but not a smart question:
There is no legal requirement for an attorney to accept your POA within any time frame. An attorney can accept your POA many years later. And if you have appointed more than one attorney they can accept many years apart from each other. They don’t need to accept your POA on the same day. Indeed your attorneys may be living outside of Australia in different countries. However, your POA won’t come into operation for that attorney until that attorney does sign. But the signing can be done when the POA is actually needed.
After you build your POA, you print off two copies. You sign both copies. Both copies are originals. There is no legal requirement to hand over one of your original POAs to any of your attorneys. You may, however, wish to do so. At the very least:
People think when you appoint someone under a POA you give them ‘power’. It is quite the opposite. You are getting yourself a free slave. They must always act in your best interest. They cannot gain an advantage from holding your POA. That is a terrible burden on anyone.
Your enduring attorney is in a fiduciary relationship with you.
Fiduciary relationships are where the person acts in your best interest. They put your interest above their own. A financial planner, accountant, lawyer, director and trustee all bear that difficult burden.
Your enduring attorney does not profit from their role as your enduring attorney. They cannot gain a personal benefit. They cannot benefit to a third party.
Australia is a federation of States. Each State has its own Enduring POA. For example, a Victorian POA only works while you are in the State of Victoria. The enduring power of attorney document in New South Wales and Western Australia is less than five pages. The Queensland POA is up to 20 pages.
If you live in two States then you need to build two POAs. Build the first POA for one state. Then, build the second POA, as a second document, for the other state. (You can carry over the answers from the first document into the second document, to save you having to answer the questions again.) You should have a POA in each State that you have land in.
Each Australian jurisdiction has its own legislation governing POAs. There are 8 different types of enduring (money) POAs in Australia:
Each POA has its own peculiar wording and signing.
Most land title offices do not acknowledge or even want to look at POAs made out of their home State. They say “we don’t have time to look at strange POAs from other States”. So you have to take the above recognition with a pinch of salt.
Similarly, banks can barely understand a ‘local’ POA. They are also unlikely to want to act on an ‘exotic’ out-of-State POA.
So, contrary to the above list, usually an out-of-State POA is not recognised. You need an Enduring POA in every State and every country in which you own assets. For example, if you have assets in Double Bay in NSW and the Gold Coast in QLD then you need two POAs. One for NSW. And another for QLD.
Q: I live in Sydney. But my Enduring and Medical Power of Attorney person I am appointing lives in Victoria. In which State do I prepare my POA?
A: Get your Enduring POA where you have your assets. If you have assets in NSW then you need a NSW POA. If you have no assets in Victoria then you do not need a Victorian POA. Where your attorney (person you appoint) lives is not relevant.
For example, your home is in Blacktown, NSW. That settles the matter. You need a NSW POA. The person you appoint can live in Melbourne or London. But that makes no difference. You need a NSW POA because you own assets in NSW.
For a ‘lifestyle/medical’ POA that is different. A lifestyle/medical POA is prepared in the State you live in. If you live in Adelaide then you prepare a South Australian Medical POA. If you live in Brisbane then you prepare a QLD medical POA. Where the person you appoint lives is not relevant.
The law firm has a client. He has never been to Australia. And he also has no reason and no interest in coming to Australia.
Our client prepared three Enduring POAs for: NSW, Victoria and QLD.
Our client appointed attorneys who have never been to Australia. And his attorneys have no interest in ever coming to Australia.
Why did our client build these three Australian POAs? The client received from his mum and dad’s mutual Wills real estate in three States of Australia. In every State he owns real estate he needs an Enduring POA.
He obviously has not prepared a medical/lifestyle POA. This is because he does not live in Australia.
Australian POAs prepared on Legal Consolidated’s website are designed so that neither the Donor or Donee need to be in Australia. In fact, there is no requirement that either have ever set foot on Australian soil. Or will never come to Australia. That is fine.
But the signing of the POA by the Donor and the acceptance by the Donee can be harder is you are signing out of Australia. All 8 Australian POAs and all 8 Australian Medical/Lifestyle POAs have unique signing requirements. And these requirements are not lessened just because you are giving or receiving the POA outside of Australia.
It is important that the person giving the POA signs immediately. But the persons receiving the POAs can sign anytime. They do not have to sign with the Donor. They can accept the POA many years later in any country.
To labour the point: a person can sign, say a NSW Legal Consolidated POA in London. And 3 years later his son can accept the POA in Germany. And 2 years later his daughter can accept the POA in say, Tasmania. Of course the POA cannot be used until the children have signed. But the children do not have to be with their Dad when he signs the POA.
With all Legal Consolidated POAs, Medical/Lifestyle POAs and 3-Generation Testamentary Trust Wills and even simple Wills, get a doctor’s certificate. The doctor’s certificate states that you have the mental capacity to sign legal documents such as POAs and Wills.
Keep that Medical Certificate with the POA and your other estate planning documents.
The Medical Certificate helps prove you were of sound mind when you signed the Enduring Power of Attorney.
If you do not get a Medical Certificate then people can argue that you did not have mental capacity to sign the POA. They seek to have your POA and Will rendered void.
Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
National Australian law firm
National: 1800 141 612
Mobile: 0477 796 959
Email: [email protected]