Assigning someone with authority to deal with your legal matters when you can no longer do so yourself, is one of the biggest decisions you may make in your life.
That is why our team of solicitors at Pentana Stanton Lawyers care about your understanding of what appointing someone as your Power of Attorney means in reality, not just on paper. We take the time to ensure you are making the best decision possible to benefit your future self. Our mission is to ensure this is a positive decision that takes away the stressors of dealing with your legal matters later in life, so it doesn't become one you may ultimately regret.
As of 1 September 2015, new legislation under the Powers of Attorney Act 2014 (Vic) will now reflect that a Power of Attorney will only be legally binding if the person has the capacity to do so at the time.
By expanding the meaning of a person's 'decision making capacity' these changes are designed to afford more protection to your affairs once they are under a Power of Attorney.
To be capable, the person must be over 18 years of age, and importantly, must be able to understand the effect of a Power of Attorney, which is to give a person or the people you have selected the authority to make all legal or financial decisions on your behalf. These decisions may impact almost all aspects of your life with regard to your financial matters such as your property and assets (including trust accounts, companies and shareholdings), your health and well-being, and your future living arrangements. This is why it is crucial for your lawyer to explain the scope of the authority you are handing over.
The new legislation requires that you must be able to retain and understand this information, or weigh it up to make a valid decision on who is going to be your Power of Attorney. Determining who is the best person, or people to appoint to look after these matters is often a personal matter for you to decide. But we can assist you in enforcing a decision, particularly when it may be against other people's wishes or intentions. For example, your children or other members of your family may be concerned with your decision if there are disputes within the family. Or, what commonly arises, is if you have made a decision to appoint your Power of Attorney when you have not had the required 'legal capacity' to do so.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.