By Francesco Maconi
A Power of Attorney is a formal document, by which one person (the principal) gives another person (the attorney) the authority to act on their behalf.
Powers of Attorneys are relevant to all Australians, particularly the elderly who may need assistance in making their personal or financial decisions. Personal/Health & Financial Matters A principal may create a power of attorney document so someone else can decide over the principal”s personal/health matters or over the principal’s financial matters. Personal/Health matters may include decisions about:
- The location and people with whom the principal lives
- Where the principal studies or works
- Whether to apply for a licence or permit for the principal
- Whether to consent to or refuse health care procedures for the principal.
Financial matters may include decisions about:
- Whether to enter into contracts
- Whether to grant or discharge a mortgage
- Whether to invest capital (but only under authorised investments)
- Whether to enter into real estate transactions
- How to manage a principal”s money
- Whether to pay the principal”s debts
Types of Powers of Attorney Powers of Attorney can either be “general” or they can be “enduring”.
A “general” Power of Attorney may be given for a limited period of time or for a specific purpose. These powers cease if the principal loses capacity to make his or her own decisions.
An “enduring Power of Attorney is different. It continues even after a principal loses capacity to make his or her own decisions.
What is the Law in Queensland?
In Queensland the law that protects people giving power of attorney documents and sets forth the
obligations for attorneys is the Power of Attorney Act 1998 (Qld).
This Act limits the potential for abuse by placing high levels of responsibility on attorneys. Section
66, for example, says that attorneys must exercise their powers honestly and with reasonable diligence.
Failure to do so is an offence and attorneys could have to pay compensation.
Section 88 says that an attorney can only give gifts to a relative or close friend of the principal. This also limits the potential for abuse, because the attorney cannot make an unauthorised gift to a stranger.The value of the gift must also be reasonable.
Can the appointed Attorney be compensated?
It is important to remember that there is no obligation to pay an attorney for the work performed. In
other words, a Power of Attorney document will be effective regardless of whether the principal
pays the attorney.
At times however an attorney may wish to be paid. In these cases it is best to include a written clause in the Power of Attorney, which specifies how much and how often an attorney should be paid.
Another thing to keep in mind is that attorneys can always claim out-of pocket expenses for their work. This is the case regardless of whether the attorney is receiving a wage or payment. In all cases a claim for out-of-pocket expenses must be reasonable.
Appointing an attorney can be a daunting experience. Only a trusted individual, such as a relative or a close friend should be appointed as your attorney. It is important to remember that you can specify which decisions your attorney can make and how these decisions should be made on your behalf. For more information see http://www.justice.qld.gov.
