Power of Attorney
A Power of Attorney is one of the most important parts of your personal estate planning.
We can help you with every step of the process in appointing an attorney from identifying what type of Power of Attorney you may need to completing and finalising the required legal documentation. We can also act as your attorney if you so desire.
Public Trustee will be changing the way it provides these services from 1 July 2019.
A Power of Attorney is a legal document which gives a person or an organisation the power to manage your assets and financial affairs while you are alive. The circumstances in which the person or organisation would start managing your assets can differ and will be explained further below.
All Power of Attorney documents must be signed by you while you have the legal capacity to understand what a Power of Attorney is and you agree to the conditions included in your Power of Attorney, and the attorney you have selected must agree to be your attorney and sign an acceptance of the appointment.
The appointment may be for a fixed period and can be revoked by you at any time providing you still have legal capacity.
A Power of Attorney ceases when you die, and at that point the responsibility for your estate will be taken up by the executor named in your Will.
Appointing an attorney means that you will have chosen the person or organisation that you want to manage your affairs should the situation arise where you are no longer able to do so or do not wish to do so, for example, due to ill health. They will be a person or organisation you personally trust, and with whom you can communicate to make your financial wishes and needs clear while you still have legal capacity.
Given the law allows you to appoint someone to manage your affairs it makes sense to make it a person or organisation of your choosing, rather than having your affairs managed by a person or organisation with whom you may never have had contact and who hasn’t been informed directly by you of what your wishes and needs are. Your attorney will manage your assets and financial affairs, and therefore it makes sense to have a Power of Attorney in place as part of your financial planning.
If you have not appointed an attorney and for any reason you become incapable of managing your own financial affairs, then the South Australian Civil and Administrative Tribunal (SACAT) can appoint a financial administrator for you. This person will act in the same way as your attorney but will be required to report at regular intervals to SACAT and Public Trustee.
SACAT may appoint us or some other individual or organisation as your financial administrator. While the person or organisation will have your best interests in mind, they may not really know what your wishes and needs are and may not be the person or organisation you would have chosen for yourself.
There are many benefits to appointing us as your attorney.
We are very experienced in the role of attorney, and you can be assured that we will manage all aspects of your financial affairs (including payment of bills, overseeing investments, and making sure any hospital and medical fees are covered) with a high degree of knowledge, respect, and dignity.
We know it is important to have an attorney who is genuinely interested in you and your circumstances, and that is why your affairs will be assigned to one of our experienced officers who will be your personal contact person. All of our staff have a genuine concern for your wellbeing, and having one person in our organisation with whom you communicate means that you can be assured that your needs and wishes are well understood and that you are not just a name on paper.
As your attorney, we will also have the responsibility of investing your money for you, and we take this responsibility very seriously.
We are experienced in investments and you can be assured that we will manage your investments prudently. We also have our own investment strategies, which are very competitive and which you may wish to access.
Enduring Power of Attorney
Every Power of Attorney prepared by us will be an Enduring Power of Attorney. This means that the Power of Attorney continues to be in effect even if you lose your legal capacity due to disability or illness.
Any Power of Attorney which is not prepared by us is not automatically enduring.
‘Sleeping’ Enduring Power of Attorney
You may wish to appoint an attorney now, but decide you do not want them to take on the role yet.
We can help you to prepare all the documentation and then we can hold onto it for you until we receive further instruction. This is known as a ‘sleeping’ Enduring Power of Attorney.
You can arrange that your attorney will only start acting on your behalf when a medical advisor is of the opinion that you are no longer able to manage your financial affairs.
Substitute Power of Attorney
There is always the chance that your appointed attorney may die, become bankrupt, or for another reason no longer be able to act in the role. Appointing a substitute attorney is a sensible way to safeguard your assets and financial wellbeing should such a situation arise.
We make an excellent substitute attorney as we have been around for a long time and intend to be for a long time to come and we have experience and high level skills in managing financial affairs.
There are certain legal responsibilities that an attorney has, and these responsibilities are based on ensuring they are acting in your best interests at all times.
An attorney is responsible for paying your bills and accounts using your money, and sometimes they may be required to buy or sell property on your behalf if it is in your best interests (e.g. selling property to enable payment of an aged care facility entry fee). Your attorney must keep accurate records of all transactions and be able to explain any decisions that they have made on your behalf when required.
Your attorney can be held personally and criminally liable for any losses incurred if they have acted in an improper way. However, your attorney is not liable for any of the debts that you have personally acquired.
Your attorney is not expected to pay your bills/accounts out of his or her own money.
If they find that you do not have enough money to meet your financial commitments then your attorney must inform your creditors as soon as possible.
You will not have to pay an individual attorney for the work they do on your behalf. However, if they have out-of-pocket expenses from looking after your affairs, then these should be reimbursed from your finances. Such expenses could include the cost of travelling to pay a bill or the cost of making photocopies of documents for your records.
Your attorney must have evidence of the out-of-pocket costs they have incurred, such as receipts or a logbook for kilometres travelled in their personal vehicle to attend to your affairs.
If you lose the legal capacity to manage your own financial affairs then your attorney can continue acting on your behalf, but your Power of Attorney must be an Enduring Power of Attorney.
If your attorney wishes to give up his or her power, then they must apply to the Supreme Court. The Court may then bring into effect your substitute Power of Attorney (if you have one), or they may appoint an administrator, which is a role often assigned to us by the Court.