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Enduring Power of Attorney

on Monday, 20 January 2014.

Enduring Power of Attorney

A Power of Attorney is a legal document in which you appoint the person or trustee organization of your choice to manage your assets and financial affairs while you are alive.

You may, for instance, be traveling overseas and want to give your attorney access to your bank accounts to pay your bills or manage your finances. Alternatively, it can be useful to have an Enduring Power of Attorney if you become unwell and are no longer able to manage your financial affairs.

 

Why have an Enduring Power of Attorney?

An Enduring Power of Attorney will continue to have effect if you have lost your capacity to self-manage.

Making an Enduring Power of Attorney does not mean that you will lose control over your financial affairs. It simply gives your attorney formal authority to manage your financial affairs according to your instructions. Your Power of Attorney can be revoked at any time provided you have the capacity to do so.

An Enduring Power of Attorney only deals with property and financial matters, and enables your attorney to sign legally binding documents on your behalf. It does not give someone the right to make decisions about your lifestyle, medical treatment or

welfare: these decisions are covered by Enduring Guardianship.

An Enduring Power of Attorney ceases when you die. The executor named in your Will then takes over the responsibility of administering your estate.

An Enduring Power of Attorney enables your financial affairs to be managed according to your wishes when you are unable or do not want to conduct them personally – such as when you are ill, traveling or simply do not wish to be burdened with the day to day management of your financial affairs.

You can use an Enduring Power of Attorney for almost any financial purpose: for example, you can authorize your attorney to collect debts, vote at meetings, operate your bank account, manage your investments or carry out any other function which can be lawfully delegated.

Should you no longer be able to manage your financial affairs and you don’t have an Enduring Power of Attorney, the Guardianship Board may have to appoint a financial manager to make these decisions for you. This involves a formal hearing where evidence will be heard to assess if you have lost legal capacity and whether you need to have someone appointed to make decisions on your behalf. If the Guardianship Board decides that you need someone to make decisions about your finances and legal affairs, they will appoint a financial administrator. While they have an obligation to take your views into account, the ultimate decision rests with the Board.

The person or organization appointed as your financial administrator will not necessarily be who you would have chosen. This may be stressful for those involved and can cause considerable conflict and anguish among family and friends concerning who is appointed to make decisions on your behalf. By making an Enduring Power of Attorney, you are ensuring that the person or organization you nominate to manage your financial affairs is what you want.

How do I make an Enduring Power of Attorney?

Making an Enduring Power of Attorney involves a formal document which gives someone else (“the Donee”) the authority to make financial decisions on behalf of you (“the Donor”). The process works like this:

  • You sign a form appointing as an attorney the person or trustee organisation of your choice;
  • You may specify the types of decisions that your attorney will be able to make;
  • Your attorney agrees to their appointment by signing the acceptance section of the form.

 

Who can make an Enduring Power of Attorney?

In order to make a valid Enduring Power of Attorney you must be 18 years or over and have sufficient capacity to understand the nature and effect of the appointment. This means that at the time of making your Enduring Power of Attorney you understand:

  • The authority your attorney will have and what sort of decisions they will be empowered to make;
  • When and how your attorney will have the authority to exercise their power;
  • The effect that your attorney’s actions could have on you, and;
  • What options are open to you to cancel or change your attorney appointment in the future.

 

I have a Will: isn’t that sufficient?

Your Will ensures that your assets will be distributed according to your wishes after your death. A Power of Attorney lets you appoint someone who can manage your financial affairs on your behalf while you are alive. It is therefore important that you have both an Enduring Power of Attorney and a Will.

Who can witness an Enduring Power of Attorney?

The signature of the Donor (your signature) to an Enduring Power of Attorney must be witnessed by a person authorized by Law to take affidavits eg. a Justice of the Peace or Solicitor. This is not required of the Donee’s signature.

Who should I appoint as my Attorney?

It is important to choose your attorney carefully as they will be responsible for making legal and financial decisions on your behalf. You need to be able to trust that they do not have conflicts of interest, that they can be impartial and will act in your best interests. You should feel confident that your attorney will competently make any decisions that may need to be made. Being an attorney is a demanding job which requires special skills. Your attorney should have the business and financial skills to manage your affairs properly and be capable of keeping accurate records of all dealings and transactions they undertake on your behalf.

Your attorney must agree to take on the role. Therefore, make sure you discuss your intentions to appoint them as your attorney and what it is likely to involve before making the appointment. Even though they may be someone you know well and who cares about you, they may find the role too daunting or may feel that they cannot carry it out as objectively as they should. Once you place control of your affairs into the hands of a private attorney, they have no legal obligation to report to any other person about the management of your affairs. This can leave you vulnerable to mismanagement of your affairs.

In most instances, particularly with Enduring Powers of Attorney, it is likely that the Enduring Power of Attorney will not be activated until some time in the future.

Therefore, a friend or relative who is much older may not be appropriate to appoint under an Enduring Power of Attorney as they may not survive you or be able to take on the role when required.

What are the duties and responsibilities of my Attorney?

You are able to give your attorney the power to make decisions or do anything with your property or finances that you could do yourself. These broad and general powers include selling property, managing investments and shares, and accessing cash to pay bills.

You may want your attorney to do specific things such as paying bills but not selling shares or property. An Enduring Power of Attorney can only be used in the manner granted. If your attorney exceeds their authority, legal action can be taken to protect your interests and your attorney is liable to pay compensation to you if you suffer loss as a consequence.

Your attorney is in an important position of trust and has a responsibility to always act only in your best interests. Your attorney can be held personally and criminally liable for any losses incurred by acting improperly. They therefore must:

  • Avoid doing anything as an attorney which would mean that their interests conflict with your interests;
  • Obey your instructions while you are mentally capable and any directions you make in the Enduring Power of Attorney;
  • Act according to any limits or conditions placed on their authority;
  • Not give gifts or give themselves or others a benefit using your finances unless you specifically authorise this. The gift given must be seen as reasonable given the circumstance;
  • Keep their finances and money separate from yours;
  • Keep accurate and proper records of their dealings with your finances or property.

Your attorney must also recognize your right to confidentiality, and respect your views and wishes, taking into account your existing relationships, values and culture.

What powers can I give my Attorney?

You are able to give your attorney the power to make any decisions relating to your finances or property which you could do yourself. An Enduring Power of Attorney can be completely general in the powers and authority it gives or it can specify things such as paying certain kinds of bills or selling your house.

If you wish you can give your attorney the authority to give reasonably sized gifts, for example, to close friends or family on special occasions, or make donations to your favorite charities.

You can also authorize your attorney to meet the reasonable living and medical expenses of the attorney himself or herself or nominated other people. Your attorney should therefore be a person or organization in whom you can place your trust.

Can my Attorney charge for their services?

An individual attorney (family member or friend) cannot be paid for their work but is entitled to be reimbursed for out of pocket expenses.

 

Can an interstate Enduring Power of Attorney be used in SA?

No.

 

Do I need to register my Power of Attorney?

If your attorney needs to deal with any real estate you own in SA, then the Enduring Power of Attorney document must be registered with Lands Titles Office (LTO) of the Department for Transport, Energy & Infrastructure. Otherwise, there is no requirement for your Enduring Power of Attorney to be registered. If you choose to register your Enduring Power of Attorney it:

  • Will be on record as a public document;
  • May be more easily accepted as evidence that your attorney has authority to deal with your property or financial affairs.
  • After registration, your original document will be returned to you with a registration number stamped on it. Your attorney should use this number when signing any documents on your behalf. There is a fee charged by the LTO for registering your Power of Attorney.
  • If your Enduring Power of Attorney is registered and you later revoke it (cancel it), you should register the revocation.

 

Where should I keep my Power of Attorney?

It is important to store your Enduring Power of Attorney in a safe place and provide your attorney with a copy. You should also provide a copy to anyone else who needs to know its contents, such as your solicitor or accountant.

How do I revoke (cancel) a Power of Attorney?

There are many reasons you may wish to revoke an Enduring Power of Attorney. Your relationship with the attorney may have changed or your circumstances are different and the person whom you appointed is no longer appropriate for the role. You can revoke or cancel an Enduring Power of Attorney at any time providing you are capable of understanding what you are doing.

To revoke an Enduring Power of Attorney you should inform your attorney in writing that you are bringing their appointment to an end.

Should you fail to inform your attorney of the revocation your attorney can legally continue to make decisions on your behalf. Your bank and any other relevant groups or businesses with which your attorney may have been dealing should be notified of the revocation.

If your Enduring Power of Attorney is registered you should also register the revocation.

After revoking the Enduring Power of Attorney you should destroy the original and any copies of the Enduring Power of Attorney document you may have.

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