Who can appoint an attorney?
To appoint an attorney, a principal must be over 18 years old and be able to understand:
- the nature of what they are signing;
- the powers granted to the attorney; and
- what powers they retain.
That is, the principal must have the The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. to appoint an attorney. The POA A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. (s 4) sets out the capacity test to be applied. It is presumed that people have decision-making capacity (s 4(2)) unless there is Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. to the contrary.
Who cannot be an attorney?
People who are under 18 years old or who are Being unable to pay your debts in full when they are due. cannot be attorneys.
The people who cannot be an attorney for financial matters are:
- people found guilty of a dishonesty A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). (but section 28(1)(c)(ii) has a work-around for this);
- people who are care workers, health providers or who provide accommodation for the principal.
What the principal should consider
In appointing an attorney, a principal has to work out:
- whether they should appoint one or more attorneys;
- whether the attorney for financial decisions be the same attorney for personal matters;
- if more than one attorney is appointed, whether the attorneys make decisions jointly (i.e. all agree), separately (i.e. independently of each other; this is called ‘severally’ in the sense of the power can be severed or cut into pieces), jointy and severally, or by way of a majority;
- if an attorney is unable to act, whether it is necessary to appoint another person(s) to step into their shoes (i.e. an alternate attorney(s)).
If the principal thinks their attorney may have a A situation where someone’s personal interests or their duties to another person could affect the way they carry out their duties. If there is a conflict of interest in performing up a role, the person generally should not accept that role. For example, a lawyer should not agree to represent the buyer as well as the seller in a sale of land. with the principal, this needs to be thought through as it could prevent the attorney from acting. A conflict may occur where the principal and the attorney own property jointly (there is a work-around for this in section 65 of the POA Act).
In the case of an Written authority given to a person to make decisions on behalf of another person. The authority remains valid even when that person is no longer mentally competent. The power can be restricted to personal or financial matters. See also power of attorney; supportive attorney.A formal, written legal document in which one person gives another person power to make decisions or take actions for them in certain situations. See also enduring power; supportive attorney. (see below), the principal has to think through when the enduring power A document that sets out what a person wants to happen to their money and other property after they die. begin (e.g. should it begin immediately?). This may make sense if the principal needs someone to help with banking. Should it begin early when the principal loses capacity? This may make sense regarding personal matters (e.g. determining where the principal lives) where the principal is still able to make those decisions. The POA Act has some Failure to do something that is legally required. For example, a person who fails to make a payment on their car is in default on the loan; if they continue to be in default the creditor may issue a default summons to take the debtor to court. settings if there is nothing specified in the power (see s 39).
The principal can place conditions on the attorney’s powers and can give instructions in the document of appointment.
Witnessing an appointment
The principal has to sign the appointment of attorney form in front of two witnesses. The witnesses must be over 18 years old and be present at the same time. One A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. must be either a medical practitioner or authorised to witness affidavits (s 35).
The witness cannot be:
- the principal’s attorney(s);
- a relative of the principal or the attorney(s);
- a care worker for the principal;
- an accommodation provider for the principal.
The witnesses have to certify the principal is acting freely and voluntarily and appears to have decision-making capacity (s 36).
There is provision for another person to sign for the principal if the principal is unable to do so (s 34).
Appointments made after 12 March 2018
With the commencement of the MTPD Act on 12 March 2028, an attorney for personal matters can no longer be appointed to have powers about ‘any matter that relates to medical treatment or medical research’. Since 12 March 2018, individuals have been able to appoint a medical treatment decision-maker.
Attorneys appointed before 12 March 2018 continue to have the power to make medical treatment decisions as the person’s appointed medical treatment decision-maker (s 103 MTPD Act).