Many people understand the importance of making a power of attorney. If you are not able to make financial decisions for yourself, then your attorney can step into your shoes and look after things for you.

But not all enduring powers of attorney are equal or effective.

Hi, I’m Warwick Gilbertson, Partner at Turnbull Hill Lawyers.

To get us started, it’s important to understand what an enduring power of attorney is, as well as who your attorney is.

An enduring power of attorney is a document that appoints someone who can take care of your finances should you lose capacity to do so yourself.

Whereas an attorney is the person you’ve chosen in that document, usually a family member or someone you trust.

Most standard enduring powers of attorney are insufficient to enable your appointed attorney to do the things that you would expect them to.

For example, unless the enduring power authorises them, your attorney cannot look after your spouse or children. This is because the attorney is authorised only to act in your interests, not in the interests of family members.

Specific authorisations need to be set out in your power of attorney. These can include:

Authorisation to support family members.

Authorisation to disclose your personal information to third parties and to receive personal information from third parties. Privacy laws mean that often authorities will not disclose information to you without the power of attorney authorising them.

Superannuation is usually a significant asset, and there is a chance your attorney may need to access that superannuation to properly provide for you and your family if you are incapacitated.

Without the authority in the power of attorney, the trustees of the superannuation fund may not allow your attorney to use your super how they might need to. This is even more important if you have a self-managed superannuation fund.

Do you have a family trust? Your power of attorney needs to authorise the attorney to act in any positions you hold within the trust structure, such as the appointor and/or trustee.

Should you wish to make gifts to family members or donate to charity, the power of attorney needs to authorise your attorney to give those gifts. Giving away money may not be seen to be in your interests.

What about your will, should your attorney be able to access it? – unless you authorise it in the power of attorney, they won’t be able to.

If you have named a family member or a business partner your attorney, you should make sure you authorise them to benefit themselves or to act in circumstances where they have a conflict of interest, as this will protect them from potential liability.

There are many other examples, but these authorisations are important because if your attorney acts without authorisation, they can be sued… By giving these authorisations, you protect them and also prevent future arguments.

At Turnbull Hill Lawyers, we understand the difficulties that a poorly prepared enduring power of attorney can cause, and the arguments that then occur between family members and business partners. We can help you draft appropriate powers of attorney for your particular situation.

Contact us today to review your needs and to assist you in completing an enduring power of attorney that actually works.

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