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Power of attorney

Swanwick Murray Roche Lawyers & Solicitors Rockhampton & Central Queensland & Queensland | Wills & Estates

A power of attorney is a formal document giving another person the authority to make personal, health and/or financial decisions on your behalf.

Personal decisions relate to your care and welfare, including your health care, (e.g. deciding where or with whom you live or consenting to medical treatment).

Financial decisions relate to the management of your finances (e.g. paying your bills and taxes, selling or renting your home, using your income to pay for your needs or invest your money).

There are 3 types of power of attorney:

  1. general power of attorney
  2. enduring power of attorney
  3. company power of attorney

General power of attorney

You would use a general power of attorney to appoint someone to make financial decisions on your behalf for a specific period or event, such as if you’re going overseas and need someone to sell your house or pay your bills.

This document is only used while you still have your own capacity and can still make your own decisions. The document cannot be used after you have lost capacity.

You have lost capacity to make a decision if you cannot:

  • understand the nature and effect of the decision
  • freely and voluntarily make the decision
  • communicate the decision in some way

Enduring power of attorney

An enduring power of attorney is a formal document giving another person the authority to make personal, health and/or financial decisions on your behalf when you have no capacity as determined by a doctor.

Unlike a general power of attorney:

  • For financial decisions, you can nominate whether you want the attorney to begin making financial decisions for you straight away or at some other date or occasion, such as once you’ve lost capacity to make these decisions.
  • Your attorney’s power to make personal decisions only commences when you lose capacity to make these decisions.

It is particularly helpful between spouses to allow each other to continue to transact joint accounts or buy/sell jointly held property.

It is particularly helpful for spouses in case they are both incapacitated, to have some care for their children and be able to access funds to make that happen.

Read this factsheet for more information.

Company Power of Attorney

A company power of attorney is a legal document made by a company that authorises a person (the “attorney”) to act on its behalf and/or sign certain documents on its behalf.

A power of attorney for an individual ceases when you lose capacity. An enduring power of attorney can only be used to the extent of your powers as a shareholder (and involves time-consuming ASIC appointments to change directors to enable your attorney to exercise company power of attorneys). A company power of attorney allows a person to act immediately for the company in emergency situations such as incapacity or death of sole directors/secretaries.

It is particularly helpful for sole director/secretary/shareholder companies or companies operated by spouse units.

Read this factsheet for more information.

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