Legal Comment by Mark Illidge of Hinterland Lawyers

September 2005

A Power of Attorney is a legal document authorising another person, such as a trusted friend or relative, to act on your behalf in your affairs.  It is just as important as a Will.  While a Will operates on your death, a Power of Attorney operates during your life.  It is a convenient method of allowing someone to handle your affairs if you: go overseas, take an extended holiday, suffer poor health, or reach an age when you need greater assistance.  A Power of Attorney can be either General or Enduring.

A General Power of Attorney can be used by both corporations and individuals.  It can authorise your attorney to deal with your personal or financial affairs, or both, and comes into effect on the date that you elect.  A General Power of Attorney does not operate when you lose capacity to make decisions.

Under an Enduring Power of Attorney you may give your attorney the power to deal with all or part of your financial, personal, and health matters.  An Enduring Power of Attorney for financial matters comes into effect immediately or on the date or event (eg. incapacity) that you elect, and continues to operate when you lose capacity to make decisions.  For personal and health matters your Enduring Power of Attorney comes into effect on the date of incapacity.  Your Enduring Power of Attorney 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; or if your attorney becomes unqualified (e.g. bankrupt or a paid health care provider).  To be valid your Power of Attorney must be in the approved form and comply with strict witnessing requirements.

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