Enduring Power of Attorney

Grant D Edwards LL.B
(Mobile Wills Service)
ph 08 83421519 mob 0420 358 912

In the good old days – well in the 1990’s – when you ventured overseas you had drawn before you left, a Power of Attorney (you as the donor) appointing your parents or best friend your attorney (the donee/s) whilst you were overseas to manage all your money matters.

He/she could then sign any legal documents you couldn’t, because of your absence. They could go to the bank and transfer money to you, from your account in Adelaide when you inevitably ran out overseas! There was a fundamental problem with this however as if you were in a coma/injured and couldn’t give instructions, then the person you appointed couldn’t act. The government was then persuaded to amend the act to make the power of attorney still active, notwithstanding the inability of the donor to instruct the donee. The document was then called a general and enduring power of attorney. This is the document that is now universally used.

Everyone over 50 should have one as an insurance policy and it doesn’t need to be updated /registered or whatever, it is there in the background and can be used when needed, to handle the donor’s money matters when they can’t.

People often ask me but doesn’t that means if I appoint my child/children it can be used by them to take money out of my account or sell my house over my head without me knowing. The answer to this is making the activation of the power subject to the person attempting to use it, proving that the donor is medically unable to make decisions. This means they will need to produce a medical report showing the person cannot make monetary decisions. Also the donor can hold the document and only hand it over to use, when need be. This gives the necessary balances and checks.

Sometimes if the donor is sick or elderly they are happy to have the document active immediately hence I always advise the client before I draw it of the pros and cons of having it made active immediately and then draw it as they instruct. I describe it as an insurance policy and its only there, if and when needed.

I often get calls asking if I can draw one for a parent who has dementia etc and I advise no-the person appointing has to have legal capacity at the time it’s drawn. The normal way it’s drawn is to appoint your spouse/partner as the initial donee, but if they predecease you or are unable to act then the children/friend etc can then do so. Therefore it’s imperative to have one drawn whilst you can, as tomorrow could be too late!

Grant Edwards LL.B. Mobile Wills Service we visit you at home etc 24/7


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