Andrew B Thiele & Co Lawyers & Conveyancers

What is a Power of Attorney?

An enduring power of attorney should not be confused with a Will. A Will covers the situation in the event of your death and gives directions to your executors to distribute your estate according to your wishes. An Enduring Power of Attorney is to cover those situations where you are not dead, but for some reason or other you do not wish to, or are unable to, manage your own financial affairs.

Who can make a Power of Attorney or Advance Care Directive?

Anyone over the age of 18 who has the capacity to understand the nature and consequences of the document, who makes the decisions in the document of their own free will and who can communicate clearly what those decisions are.

When should I make a Power of Attorney & Advance Care Directive?

Before you need them! These documents safeguard your interests in the event of something unforeseen – an accident or illness that robs you of your capacity to make decisions for yourself. It is better to be prepared and confident in knowing that the person you choose will be making important decisions about your money, your living arrangements and your health.

Who should I talk to about it?

It’s really important that you discuss these documents with us as we can give you professional advice about your particular circumstances. It’s also vital that you discuss your wishes with your family to avoid unnecessary conflict and stress.

When does it start?

The Advance Care Directive only commences when you are unable to make your own decisions. You can make your own decisions if you can: Understand information about the decision, Understand and appreciate the risks and benefits of the choices, Remember the information for a short time, Tell someone what the decision is and why you have made the decision.

What are the legal responsibilities of my Attorney or Substitute Decision Maker?

They are legally responsible to you and must act in your best interests. While you have mental capacity they must obey your instructions. They cannot give gifts to themselves or to anyone else unless you specifically authorise this and they must keep their finances and money separate from yours, keeping accurate records of all of their dealings with your money.

Can I change my mind?

Yes, as long as you still have the decision-making capacity to do so you can revoke or change these documents. This has to be done in a legally binding way, however, so please seek legal advice.

Do I need a witness?

Yes, these documents need to be witnessed by a person with statutory authority such as a solicitor or Notary Public (Mr Thiele is both) or by a Justice of the Peace.

Can’t I make my own?

Yes, you can. But beware of the homemade will or will kit. These kits often come from interstate where different rules apply. We are often called upon to fix these problems up at a cost. It is much cheaper and safer to have it prepared professionally in the first place. We always recommend keeping your will up to date, as it makes distributing your estate far easier on your beneficiaries in what is already a difficult enough time for them.

Who should I appoint to be my Attorney or Substitute Decision Maker?

You need to appoint someone your trust to make the right decisions. With an Advance Care Directive, your substitute Decision Maker cannot be directly or indirectly involved in your medical care or treatment. So it can’t be your Doctor.