When should I make a power of attorney?

Some clients feel they are too young to worry about putting a power of attorney in place, and that it is something for later in life.

Sadly we also see clients who have left it too late – they have lost capacity, and now their spouse, child or parent has no alternative but to apply to VCAT for appointment as their guardian and administrator, with the significant time and stress that entails.

The vicissitudes of life can bring unexpected changes, and we can never be sure what lies around the corner.

Many clients assume that if their spouse suffers from dementia or a brain injury causing loss of capacity, that they will automatically be able to make decisions and sign documents on their behalf – but that is often not the case.

Although many bank accounts are held in joint names, and either signatory may transact the account, sometimes accounts are held only in the name of one spouse, and the bank will not permit the other one to transact it without a power of attorney. This may also be the case for accounts with utilities such as the mobile phone provider or water authority, who will only deal with the account holder or a properly appointed attorney. Vehicles are also usually held in a sole name.

If the family home or an investment property is jointly owned and one owner loses capacity, then a power of attorney (or VCAT appointment) is required to sell or mortgage it.

Making arrangements to move someone who no longer has capacity into a nursing home also requires authority, and the accommodation staff usually ask for a copy of the power of attorney.

If you are an adult fortunate enough to have someone you fully trust with your financial and personal affairs, and feel confident they will make the decision you would make if you could, then you are not too young to appoint an attorney.

We often recommend clients consider putting an enduring (financial and personal) power of attorney in place at the same time as arranging a medical treatment power of attorney and a will, as it is faster, easier and more economical to do all three documents at the same time, rather than separately.

Clients find that signing the power of attorney brings a sense of relief, in knowing that their trusted person can step in and act for them when needed.

If you would like to discuss putting a power of attorney in place, please give us a call.

Author: Kent Mallinson

Published: 24 May 2021


The information in this article is general in nature and is not to be relied upon as legal advice. As always, we recommend you seek thorough legal advice to consider your own circumstances and determine whether the information contained in this article is applicable to you.  This article is current as at the date of publishing but will not be updated as circumstances change.