We help both individuals and business entities establish powers of attorney suitable to their unique needs.

For personal requirements, making a power of attorney ensures that your wishes are respected if you are one day physically or mentally unable to make decisions for yourself.

We are committed to collaborating with you, understanding your concerns and wishes upon your potential incapacitation and adapting a plan for how your attorney will act and carry out your wishes.

A company power of attorney can be made to authorise someone to act on behalf of your company and/or sign certain documents on behalf of the company.

If you are the sole director of your company, this is particularly important as it will ensure someone else can make decisions on behalf of your company and sign documents in the event you become unable to do so.

Failure to have a company power of attorney in place may mean the operation of the company comes to a grinding halt if a sole director becomes incapacitated.

Our expert team specialises in drafting and preparing powers of attorney, providing a holistic and tailored service to ensure your power of attorney fits in with your estate planning objectives.

Our services include preparation and registration of power of attorney, revocation of powers of attorney, enduring powers of attorney, medical powers of attorney, and preparation of enduring guardians.

We can also assist with applications to the guardianship tribunal if your loved one has become incapacitated and you need to make decisions on their behalf.

Having a well thought out power of attorney in place can also help with protecting you from elder abuse.

MV Law understands that this topic can be difficult to face for many people. With this in mind, our team of power of attorney lawyers in Canberra strive to make the process as comfortable and straightforward as possible.

We will discuss the legal and non-legal advantages and disadvantages of your proposed power of attorney, and explain it all in practical terms and plain-English.

A Power of Attorney is a legal document that allows you to appoint a trusted person or number of people, to make decisions for you immediately or when you lose capacity to make decisions for yourself due to injury, illness or disease. This gives you the peace of mind of knowing that legal, financial, personal, lifestyle or health decisions will be made on your behalf and according to your wishes, by someone you trust.

There are three types of Power of Attorney (POA).

1. A general POA is used to appoint someone to make legal and financial decisions on your behalf when you can still make your own decisions and it becomes invalid when you lose capacity.
2. An enduring POA is only valid while you are alive and gives legal authority for another person/s to make personal, health/medical research and financial/property decisions on your behalf and it endures even if/after you lose capacity.
3. A company power of attorney can be made to authorise someone to act on behalf of your company and/or sign certain documents on behalf of the company. This can be especially important if you are the sole director and sole shareholder of a company.

You should nominate a person or people that you absolutely trust to make sensible and good decisions and who will act in your best interests. You should bear in mind that your attorney may need to make decisions for you in stressful situations as unfortunately, it is often the case that Powers of Attorney need to be invoked in distressing circumstances or when the principal loses capacity.

You might wish to nominate more than one attorney, so that two or more people will be making decisions for you at all times. Where more than one attorney is nominated, you will nominate how they make their decisions – jointly (that is, unanimously and together), separately (that is, individually or one at a time) and/or by majority.
It is always advisable to have a back-up attorney nominated, so that if your first attorney is unable to act, then someone else is appointed to step into the role.

You may want to appoint different attorneys for different functions. For example, you may have a sibling who you would trust to make excellent financial decisions for you but a different sibling would be more suited to making health and personal decisions for you.

When selecting your attorney, you should consider the following factors:

1. Are they trustworthy to manage your financial and personal affairs? Attorneys can make just about any sort of decision for you (with some exceptions) that you could otherwise make yourself – they could withdraw money from your bank account, sell your house if needed or they could consent to the withdrawal of life-saving treatment. These are very serious decisions and the power you are giving is wide. As such, you must ensure that you nominate someone who you trust completely to make decisions for you if you can’t.
2. Are they calm and able to make decisions for you under stress? Could they cope with such decision-making?
3. Do you think they’d make the sorts of decisions you would make if you could? Do they think in a similar way to you?
4. Do they have the time and willingness and capacity to act as attorney, which can be quite an onerous responsibility. So you should think about whether they could cope with the potential burden.
5. Are they responsible and well-organised? They will need to keep records of any actions they take as your attorney and keep accounts if they are attending to your financial matters.
6. Do they live in the same city as you? If not, you might consider nominating someone who does live nearby or perhaps consider appointing multiple attorneys who you can authorise to act together or separately.
7. Again, to repeat it, are they trustworthy? Will they always act in your best interests and not in theirs?

An attorney must always exercise power honestly and carefully. They have a fiduciary duty to act in the best interests of the principal. They cannot benefit themselves or others while being an attorney (unless the Power of Attorney specifically provides an exception to conflicted interest).

An attorney must ensure that they keep the principal’s money separate to their own money and they must keep separate and accurate records of all financial transactions.

We help both individuals and business entities establish powers of attorney suitable to their unique needs. We have extensive experience in making general powers of attorney, company powers of attorney, enduring powers of attorney and enduring guardian appointments.

Our power of attorney lawyers in Canberra can guide you through this process both in the ACT and NSW. We can provide guidance to attorneys in understanding their responsibilities and limits of their powers granted under a Power of Attorney.

Our expert team can also help with ACAT or NCAT guardianship tribunal matters when a next of kin seeks to be made manager or guardian for a person who has lost capacity and who didn’t have an enduring power of attorney in place. We can also help with advice in ACAT or NCAT guardianship tribunal matters where there is a dispute pertaining to the power of attorney or guardian or if a review is being undertaken of the exercise of the powers given under the document.

Regarding the power given to an attorney to make property and financial decisions for a principal, the principal decides when a Power of Attorney comes into effect and that choice is written into the document itself. Depending on its terms, a Power of Attorney can come into effect:

1. upon the principal’s impaired decision-making capacity; or
2. immediately; or
3. when the principal is interstate or overseas; or
4. for a specified period of time; or
5. for specific purposes as defined in the Power of Attorney document.

The principal can decide whether they would like one attorney to receive immediate power while another (perhaps the alternate appointed attorney) is to receive power only upon the principal’s incapacity, or a mix and match of the options detailed above.
Regarding healthcare, medical treatment and personal or lifestyle decisions, the attorney’s powers will only come into effect if the principal loses capacity. It is up to a doctor to decide when a principal has impaired decision-making capacity. The doctor can provide a letter to that effect.

The concept of decision-making capacity can be a fluid one. Capacity is typically specific to the decision that is to be made. For example, someone might have capacity to understand and make simple decisions (such as what food they choose to eat) but not more complex decisions (such as which insurance policy they ought to purchase). Sometimes, lack of capacity is obvious – for example, if the principal is in a coma after an accident.

A Power of Attorney can be revoked by way of a declaration of revocation inserted into a new Power of Attorney made by the Principal, or simply by written notice of the revocation to the attorney/s by the Principal.

If you lose capacity and do not have an enduring power of attorney in place, your loved ones may need to make an application to the guardianship tribunal (ACAT or NCAT) to give them the power to make decisions for you. A Manager can be appointed to look after financial decisions and a Guardian can be appointed to make personal/healthcare decisions.

Except in Western Australia, legislation across Australia deems an enduring power of attorney made in a State/Territory to be recognised in other States/Territories to the extent that the powers it gives were valid under the local legislation where it was made. Because Tasmania requires registration of powers of attorney, an interstate power must be registered to have effect in Tasmania. In Western Australia an interstate power can only be recognised if the State Administrative Tribunal makes an order that it be recognised.

A general Power of Attorney ceases to be effective if and when you lose decision-making capacity, whereas an Enduring Power of Attorney continues to be effective up until your death even if you have lost decision-making capacity. That is, an Enduring Power of Attorney ‘endures’ through your impaired decision-making capacity – indeed, that’s often the main reason to prepare an Enduring Power of Attorney so that someone can legally make decisions for you if you lose capacity.

No. A power of attorney cannot make, revoke or change a Will for the principal.

An enduring Power of Attorney or Enduring Guardianship can be made separately to a Will. A Will is a separate document as it contains a person’s testamentary intentions for distribution of their estate after their death. An enduring Power of Attorney or enduring Power of Guardianship is only effective when a person is alive.

Some traps to be aware of include not thinking very carefully about who to appoint. Whomever you appoint as your attorney needs to be absolutely trustworthy. An enduring power of attorney is a very powerful document and, sadly, can be prone to misuse or blatant abuse. We have seen several cases where attorneys have quite blatantly and improperly taken the principal’s money and assets. Of course, the badly behaved attorney can be called to account but it requires someone to be aware of what has happened and for action to be taken.

You should consider carefully the trustworthiness of the person or people who will be your attorney. You should consider whether you want to appoint more than one person so there is less chance of one person going rogue or doing the wrong thing. If you are appointing multiple attorneys, you need to consider whether those attorneys are likely to get along and agree, or will there be fights or disagreements? Can they work effectively together? If you appoint more than one attorney, will you authorise them to act separately or must they always work jointly?

An important consideration is how much power your attorney will have when managing your finances and if there is a risk that they will abuse that power, particularly when you might not know or understand what is happening. There are ways to protect you so as to ensure that your attorney does not misuse their powers by including particular provisions in your Enduring Power of Attorney.

You can build into your document directions, limitations or conditions so as to set out and describe how your attorney may or may not act in making decisions for you. These directions can be quite specific. We can help you prepare such directions.

If you feel that your own attorney is misusing their power, and you have capacity to do so, you can revoke the Power of Attorney and make a new one naming a different person as attorney.

If you are worried that an attorney is misusing their power for a loved one, you may be able to have that attorney held accountable for their actions in the ACT Civil and Administrative Tribunal (ACAT) or NCAT in New South Wales. We recommend you contact us for legal advice if you are concerned an attorney is misusing their power. We have experience in helping to recover funds that have been misapplied by attorneys in ACAT proceedings.

If you lose capacity and do not have an enduring power of attorney in place, your loved ones may need to make an application to the ACT Civil and Administrative Tribunal (ACAT) or NCAT in New South Wales to give them the power to make decisions for you.

A next of kin does not have the power to override decisions made by an attorney nominated by the principal via a validly executed Power of Attorney.

However, if a next of kin is concerned about the attorney making decisions against the principal’s interests, they can apply to the Guardianship Tribunal at ACAT or NCAT to review whether the attorney’s powers are being exercised within the scope set out in the Power of Attorney, or against general law. A Tribunal has the power to remove an attorney if incompetency or wrong-doing is found, and a Tribunal also has the power to nominate a new attorney, such as next of kin or a close friend. If no one is available or willing to accept the role, the Tribunal may appoint an independent body such as the Public Trustee and Guardian.

People with very early on-set symptoms of dementia may still be able to appoint their own attorneys if they are assessed as having sufficient capacity to make a Power of Attorney. Where there has been a dementia diagnosis, often medical evidence will be required that goes to the issue of capacity. A doctor will typically need to be engaged to assess the person’s capacity.

However, if a person with dementia is found to not have the capacity to understand a legal document like a Power of Attorney or a Will, he or she will not be able to appoint an attorney on their own. Their next of kin can apply to the Guardianship Tribunal at ACAT or NCAT to be appointed as their Manager and/or Guardian in order to manage their financial and personal affairs.

Yes, banks will accept an enduring power of attorney that has been prepared and signed in accordance with the legal requirements. Therefore, it is important you seek legal advice when preparing an enduring power of attorney to make sure it is legally valid and enforceable.