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Power Of Attorney FAQ Australia WA
A Power of Attorney is a document in which one person (the Donor) appoints another person (the Attorney) to act for him or her. There are many reasons why you might want to appoint someone else to look after your financial affairs. For example, if you are going to be out of the country for a lengthy period of time, you might want someone to do your banking while you are gone. If you are approaching old age, you may want to give a Power of Attorney to a person you trust so that he or she can manage your property for you.
There are two major types of Powers of Attorney: ordinary and enduring.
An ordinary Power of Attorney is only valid as long as the Donor is capable of acting for him or herself. If the Donor dies or becomes mentally incompetent, the Power of Attorney is invalidated.
An Enduring Power of Attorney remains valid even if the Donor later becomes mentally incompetent. (Note: the Donor must be competent at the time the Power of Attorney is made.)
In either case, the Power of Attorney becomes invalid when the Donor dies. A Power of Attorney cannot be used to bequeath property upon the death of the Donor.
A general Power of Attorney is one that gives the Attorney the authority to do anything the Donor could do him or herself. A specific Power of Attorney is one that gives the Attorney authority to act for a particular purpose. (For example: to buy or sell a particular piece of property.)
NO. Generally Speaking, when a person dies, the Executor (also called a "Personal Representative") appointed in the person's Last Will and Testament takes control of the deceased person's property and distributes it according to the instructions in the Will. If there is no Will (or if the Will is invalid), each jurisdiction has intestacy legislation that distributes the deceased person's property to his or her relatives according to a set of rules. A court generally appoints an Administrator to oversee this process. Unfortunately, the deceased person's wishes are not taken into account during the process (which can be very lengthy), since they have not been formally expressed in the proper manner.
In most of Australia, powers of attorney do not give someone the right to make decisions about your welfare or medical treatment. Usually, a medical power of attorney or anticipatory directive is required to deal with non-financial matters. The exception to this rule is found in Australian Capital Territory and Queensland. In the Australian Capital Territory you can use your Enduring Power of Attorney to appoint someone to run your everyday affairs (other than property and money) and consent to medical treatment and medical donation while you are incapacitated. In Queensland you can use your Enduring Power of Attorney to appoint someone to make personal and health decisions when your capacity is impaired.
The Donor is the person who needs someone else to act for him or her. The Donor must be an adult. The Donor must be capable of making his or her own decisions at the time the Power of Attorney is executed (signed).
A person is incapable of managing property if the person is unable to understand information relevant to making a decision about the management of property, or if the person cannot appreciate the foreseeable consequences of making (or not making) a decision about the management of property.
The person appointed by the Donor is called the Attorney. The Attorney is the person who acts for the Donor.
No, there is no need for the Attorney to be a lawyer. (See below for Attorney qualifications.)
The Attorney must be a capable adult. The Attorney cannot be an undischarged bankrupt. The Attorney should not be the owner, operator or employee of a nursing home or extended care facility in which the Donor is a resident.
Your Attorney must be someone whom you trust completely. In addition, remember that your Attorney will have complete authority to deal with your financial and legal affairs (subject to any limitations or restrictions specified in your Power of Attorney). You should ensure that the person you choose has adequate financial management skills and sufficient time to handle your affairs properly. Your Attorney must be available when required, be able to objectively make decisions and be able to keep accurate financial records.
Your Attorney has the following responsibilities:
Yes, people often appoint relatives as Attorneys.
Yes.
Sometimes a Donor will want to appoint two Attorneys. In that case the Donor must decide whether the Attorneys will be 'joint' Attorneys or 'joint and several' Attorneys. Joint Attorneys must act together. They must both agree before any action can be taken, and they must both take the same action at the same time. If one is absent, no action can be taken. Joint and several Attorneys can act together or individually. Either one can take an action without consulting the other. If one is absent, the other can still act.
Under the Guardianship and Administration Act (1990) your Attorney must:
If you are concerned about how your Attorney is managing your property or financial affairs, it is recommended that you contact the State Administrative Tribunal. The tribunal can formally review your Enduring Power of Attorney and determine whether any additional protection is required to safeguard your interests.
If your Attorney is no longer able to act on your behalf, you will have to revoke the Power of Attorney. However, if you are no longer able to make decisions for yourself, then you will not be able to revoke the Power of Attorney. In such situations, your Attorney will have to apply to the State Administrative tribunal and make alternative arrangements to ensure that your interests will be protected. Your Attorney is legally required to continue acting as your Attorney until these arrangements have been made.
It is a good idea to appoint an alternate/substitute Attorney but it is not absolutely necessary. An alternate/substitute Attorney can only act when the Attorney is unable or unwilling to continue acting for the Donor. Note: A third party (e.g. the Donor’s bank) may require proof that the original Attorney is unable to continue as Attorney before accepting instructions from the alternate. Where two Attorneys have been appointed, you will need to indicate whether your substitute attorney will be replacing either of your original attorneys or both of your original attorneys.
There is no one standard way for an Attorney to sign documents. However, when you do sign, it is important that you clearly state who the Donor is and that you are acting as their Attorney. One convention is to write the Donor's name, then sign your name, and then indicate that you are the Attorney. The following is an example:
John Johnson, by Jane Smith, Attorney.
You should always have a copy of the Power of Attorney with you whenever you are acting as an Attorney. You may be required to sign an affidavit stating that the Power of Attorney is valid, that it hasn't been revoked, and that the Donor is still alive. And remember: failure to comply with directions given by the Donor, without reasonable cause, can leave you subject to civil liability for any damages caused by noncompliance.
A jurisdiction is a place that has its own laws. It is a territory with boundaries, such as a state or a province. For example, California is a jurisdiction in the United States, Ontario is a jurisdiction in Canada, Scotland is a jurisdiction in the United Kingdom and Queensland is a jurisdiction in Australia.
A Power of Attorney is governed by the law of the jurisdiction where the actions of the Attorney will be performed. Normally, this is the place in which the property of the Donor is located. Therefore, it is not a good idea to appoint an Attorney who resides in a different jurisdiction, unless the property or assets you want the Attorney to deal with are also in the different jurisdiction. If you anticipate that your Attorney will be acting in more than one jurisdiction, you should probably make separate Powers of Attorney for each jurisdiction.
Examples:
The Power of Attorney will start on the date/occasion specified in the document however special provisions apply to powers of attorney dealing with property and Enduring Powers of Attorney that come into effect after the donor has lost capacity.
If a Power of Attorney comes into effect immediately, the Attorney will be able to, subject to directions of the Donor, make property and financial decisions including decisions about land transactions as soon as the Enduring Power of Attorney has been appropriately completed and accepted by Department of Land Information (DLI).
If an Enduring Power of Attorney comes into effect only after the donor loses capacity, an application will need to be made to the State Administrative Tribunal for a Declaration of Capacity. If a determination is made that the Donor has lost capacity, the Tribunal will make an Order for the EPA to come into effect. An Enduring Power of Attorney coming into effect only after the donor loses capacity, can be lodged at the time it is given, but no interest in land can be dealt with until determination of capacity has been made by the Tribunal and lodged at DLI.
An ordinary Power of Attorney ends automatically when the Donor becomes mentally incapacitated or dies. An Enduring Power of Attorney ends automatically when the Donor dies. As long as you are mentally capable, you may revoke your Power of Attorney at any time by notifying your Attorney (in writing) that the Power is revoked and destroying the original Power of Attorney. Otherwise, a Power of Attorney continues in effect indefinitely, unless the document specifies an end date.
A person who is incompetent cannot revoke an Enduring Power of Attorney. However, an ordinary Power of Attorney is automatically revoked when the Donor is found to be incompetent.
You can revoke, or cancel, a Power of Attorney by giving your Attorney a written notice saying that his or her power has ended. Also, you may make a new Power of Attorney that states your previous Power of Attorney is now revoked (but you must still notify the previous Attorney of the revocation). Third parties (e.g., people or organisations that have been dealing with the Attorney) must also be notified. Additionally, if your Power of Attorney is registered you must also register the revocation.
Please note that if you fail to inform your attorney of the revocation, your Attorney can legally continue to make decisions on your behalf.
When you give a "general" Power of Attorney, you give your Attorney the authority to do anything you could do yourself, with a few exceptions - such as areas where you possess skills that your attorney doesn't (e.g. if you are a dentist, you cannot authorise your Attorney to practice dentistry on your behalf). But there may be some things you would prefer your Attorney did not do. For example, you may want to require that your Attorney get prior approval from you before signing cheques for large amounts on your account.
If the person you are appointing as your Attorney is also a member of your family or a beneficiary in your will, you may want that person to be able to personally benefit from managing your assets, since you intend that person to become owner of the assets eventually. Generally, however, it is probably not a good idea to allow your Attorney to personally benefit from managing your assets as this creates a conflict of interest for your Attorney, who is legally obligated to act in your best interest, not his or her own best interest.
The Attorney may transact business respecting the Donor's property in all areas specified by the Donor.
Generally speaking, the Attorney is not obligated to act for the Donor. However, in some circumstances the Attorney may agree, in writing, to accept an obligation to take action when necessary. When the Attorney acts on behalf of the Donor, the Attorney must act in the best interest of the Donor.
Generally speaking, a Power of Attorney is effective as soon as it is executed (signed and witnessed, etc.) whether or not the Donor is available or able to handle his or her own affairs. However, the document might specify that it will only be effective under certain conditions. For example, some Powers of Attorney specify that they will not come into effect unless and until the Donor has become mentally incompetent to handle his or her own finances. Note: Some jurisdictions do not allow Powers of Attorney that commence upon the occurrence of a condition or event such as mental incapacity.
When a person "executes" a document, he or she signs it with the proper "formalities". For example: If there is a legal requirement that the signature on the document be witnessed, the person executes the document by signing it in the presence of the required number of witnesses.
To be valid, you must sign the document with your usual cheque signing signature. You should also initial each page of the document. The signing and the initialing of the pages must occur in the presence of your notary or witness(es).
After you have signed and initialed your document in front of your notary or witness(es), your notary or witness(es) must sign on the applicable page of the Power of Attorney and should initial each page. This must occur in your presence.
Your witness(es) cannot be your spouse, partner, child, your Attorney or alternate Attorney, or the spouse of your Attorney or alternate Attorney. Some jurisdictions disallow witnesses that are mentioned in your will, either as beneficiary or executor/executrix. You should generally avoid having witnesses that have any financial relationship with you. The witness(es) must be of legal age in your jurisdiction, they must have capacity and be mentally capable of managing their property and making their own decisions.
Under Schedule 2 of the Oaths, Affidavits and Statutory Declarations Act 2005 the following people are authorised to witness declarations in Western Australia:
If your document will be used in a different jurisdiction - but not in a foreign nation - there is no problem with having the document signed and witnessed where you live, rather than where the document will be used. The witnessing requirements (number of witnesses required, whether or not notarisation is needed) should still be those of the place where the Power of Attorney will be used, however.
Some territories and states have mutual recognition provisions in their Power of Attorney legislation which provide portability of powers within Australia. Before trying to use a power of attorney created in a different jurisdiction review the legislation of the jurisdiction where you wish to use the power of attorney to ensure that your Power of Attorney will be accepted.
If your document is intended to be used in a foreign nation, you may have to have it "authenticated" or "legalised". This is a process whereby a government official (e.g., the Secretary of State, the Foreign Office, the Office of the Attorney General - depending on where you live) certifies that the signature of the authority (e.g., notary or solicitor) on your document is authentic and should be accepted in the foreign nation. For more information about document authentication and legalisation, contact the local consulate/embassy of the foreign country your document will be going to, or one of the following government web sites:
United States: https://travel.state.gov/content/travel/en/legal-considerations/judicial/authentication-of-documents/office-of-authentications.html/
Australia: http://www.dfat.gov.au/brisbane/index.html
Depending on the kind of relationship you have with the person who will be acting as your Attorney, you will have to consider whether they should be paid for their services. You can stipulate in your document that your Attorney will not receive any payment except the reimbursement of out-of-pocket expenses, or you can agree to pay your Attorney a specified amount. If you prefer, you can authorise your Attorney to pay him or herself a reasonable amount for acting for you. However, you do not need to pay your Attorney for the power to be effective. Generally, payment is only made when a trust company or other professional person/organisation is acting as your Attorney.
You can require your Attorney to prepare periodical financial statements and send them to your accountant, lawyer or some other person you choose. This is a good deal of work, however, and most people do not require it of unpaid Attorneys.
Note: Attorneys should keep records of their actions.
If your Attorney is a family member, you may be joint owners of property. It is important to state this in your document, so that third parties dealing with your Attorney understand that the Attorney is entitled to co-own assets with you. Otherwise, the co-owning of assets could give the impression of impropriety.
Generally speaking, a Power of Attorney has to be registered with a land titles office/department if it could affect real property (land or other real estate). For example, if the Attorney is authorised to mortgage or sell the Donor's real estate, or to purchase real estate on behalf of the Donor, the Power of Attorney will probably have to be registered at the appropriate office. Usually there is a fee for registration of the document. Additionally some jurisdictions provide stricter registration requirements. In Tasmania, all Powers of Attorney (whether general or enduring) must be registered with the Recorder of Titles. In Northern Territory, all Enduring Powers of Attorney must be lodged at he Registrar-General’s Office.