Are you traveling overseas for a holiday, and want someone to make decisions on your behalf while you’re not there? Or do want to entrust your personal matters to someone just in case something happens to you? Consider making a power of attorney and appointing someone you can trust to handle your matters, and learn about the difference between a general power of attorney, and an enduring power of attorney.
What is a power of attorney?
A power of attorney is a legal document that you can use to grant another person authority to make decisions on your behalf on specific matters, such as legal and financial, in the occasion that you are incapable or busy. You can find more information on what is a power of attorney in our previous guide.
General Power of Attorney
A general power of attorney can be used to appoint someone to make legal and financial decisions on your behalf for a period of time. The following are examples of situations where you can appoint someone else to making decisions on your behalf:
- Operating your bank account for you while you are on holidays;
- Voting at meetings on your behalf; or
- Selling your house while you are in hospital.
A general power of attorney only operates when you can still make your own decisions, and ends if you have lost the capacity to make your own decisions. Each state has a different meaning of capacity; for example in NSW the standard is where a person is totally or partially incapable of managing themselves, while Victoria has multiple standards to the same effect.
A general power of attorney cannot be used to appoint someone to make personal decisions, such as health-related matters, on your behalf.
Enduring Power of Attorney
An enduring power of attorney can be used to appoint someone to make legal, financial and personal decisions (only in Queensland and Australian Capital Territory) on your behalf once you have lost capacity. The following are examples of situations where an enduring power of attorney would benefit you:
- Operating your bank account while you are in a coma; or
- Choosing the right diet and dress for you if you suffer from dementia.
An enduring power of attorney can start immediately if it appoints another person to make legal and financial decisions, not for personal decisions. The power for someone else to make personal decisions starts once you have lost the capacity to make decisions for yourself.
It must be noted that some jurisdictions do not allow an enduring power of attorney to appoint someone else to make personal decisions on your behalf. For example, New South Wales requires an enduring guardian to be appointed for such personal decisions. You will need to check with each state’s requirements before submitting an application for an enduring power of attorney.
To summarise the differences:
|General Power of Attorney||Enduring Power of Attorney|
|Matters that can be addressed||Legal and financial||Legal, financial and personal (in QLD and ACT)|
|Start date||Legal, financial: from declared date||Legal, financial: from declared date
Personal: once you have lost capacity
|End date||Once you have lost capacity||Once you have regained capacity|
Both general and enduring powers of attorney can allow you to place your matters in the hands of someone you can trust. If you would like more advice about powers of attorney, or which power to use in your situation, LawPath recommends getting in touch with an estate planning lawyer for more tailored service for your needs.
Unsure where to start? Contact a LawPath consultant on 1800LAWPATH to learn more about customising legal documents, obtaining a fixed-fee quote from our network of 600+ expert lawyers or to get answers to your legal questions.