Planning for your future financial and legal affairs
TGB’s Bethanie Castell writes about signing a Power of Attorney, and how an Attorney can help manage your financial and legal matters.
It is fortunate our law provides for an ability to appoint someone to effectively be us; someone to do our banking, manage the bills and do almost anything a person could do with his or her own financial and legal affairs.That person is called an “Attorney”, and is appointed by you signing a “Power of Attorney”.
An Attorney can be appointed in a variety of circumstances, such as if you are going on an overseas holiday, but it is most commonly used when a person is unable to manage his or her financial and legal affairs.
What are financial and legal affairs?
Financial and legal affairs are, as the name suggests, a person’s dealings with almost anything relating to money and documents where you have to sign your name. This can include, for example, dealing with Centrelink and Medicare, paying rates and taxes, gas, phone and other bills; changing electricity providers, withdrawing and transferring money, selling a car, and renting, selling or buying real estate.
“Just sign here, thanks”. How often do you hear those or similar words in your life?
But what if there comes a point where you cannot sign?
If you foresee a time where you may be unable to manage your financial or legal affairs, for whatever reason, then you can plan ahead and appoint a person now to either assist you now or in the future.
When could a person be unable to manage his or her own financial or legal affairs?
The first example I will give is one that most people think of, that of old age.It is a known occurrence that many people as they age lose some of their mental abilities. Some elderly people may be, for example, a little forgetful about what they did earlier in the day, but others may have symptoms of or suffer from mild, moderate or even extreme Alzheimers or dementia. When a person’s ability to function mentally is questioned, so too can be questioned his or her ability to sign documents and manage financial and legal affairs.
But it is not just old age that may bring about a need to appoint an Attorney. Nor is it only a lack of mental capacity or ability that brings about such need.
Injury or illness, whether permanent or short term, illustrates a perfect example of when having an Attorney is beneficial. Whether you are stuck in hospital or at home in bed and cannot physically attend the bank, or are rendered mentally incapacitated or are harmed due to a car accident or a nasty fall, having appointed someone to manage your financial affairs on your behalf can be invaluable.
Even though having an Attorney when a person is mentally incapable is very important, I wish to emphasise that lacking mental capacity is not necessary nor the only relevant factor in having an Attorney.
For example, some people are naturally not the best with numbers or just have a bit of trouble managing their financial or legal affairs. Others may just be very busy people, or have a lot going on in their lives.
Likewise, if a person is planning to go on a holiday, say overseas for a couple of months, it can be so helpful for him or her to have appointed someone who can step into his or her shoes to manage financial and legal affairs while that person is away. Thinking about backpacking in Thailand or cruising the Mediterranean? Then you should strongly consider appointing an Attorney.
What if I don’t have one?
Maybe I can wait until later in life?
Certainly, you can wait. There is no time limit as to when you can appoint an attorney, except (and this is the important part) when it is too late. It will be too late to appoint an Attorney when you are mentally incapacitated. As mentioned earlier, if your ability to function mentally is questioned, so too will your ability to sign any legal or financial documents or manage any related affairs.
If you do not have one and then require one, an interested person such as friend or family member will have to make a formal application to the Guardianship Board in order to be appointed.
So to consider when to appoint an attorney is about looking at risk; weighing up chances, such as in the examples given earlier.
The good part is, once you appoint someone they will forever be appointed unless you revoke, that is remove them from, their appointment, or they become mentally incapacitated or die.
You can also appoint a substitute. For example, I have appointed my husband to be my Attorney, but if he can’t take on that role for whatever reason (we might be holidaying together!), then I have appointed my mum and dad to act as my substitute Attorneys.
Who would I choose to be my Attorney?
It is important to appoint someone you trust and someone, or at least a substitute, who will be willing and mentally and physically able to be your attorney when necessary. Your Attorney will have to act in your best interests and should be someone who you would feel comfortable ‘being you’ if you were unable.
When does the document take effect?
Another important question that needs answering is deciding when you would like this document to take effect, that is, when it can be used.
The person you have appointed can be given permission to act as your attorney either when you lose mental capacity or immediately upon signing the document.The latter choice means that the Attorney could assist you or completely manage your financial and legal affairs straight away, and could continue to do so even if you later lost mental capacity.
A third choice is to provide a specified and limited time during which the person you appointed can act as your attorney. This option can be beneficial to people going on an overseas holiday or being unable to manage their affairs for a short-term period. However, keep in mind that in such circumstances, if a person did lose their mental capacity during this time then he or she would be unable to again appoint an Attorney for the time after the specified period.
As they say, there is no time like the present. If you haven’t already appointed an Attorney, you should strongly consider doing so.
No one knows what his or her future holds. At one point or another it is very likely you will wish to appoint someone to manage or assist you with your financial and legal affairs. Appointing an Attorney now can save you (and those who care about you) much hassle and trouble later on in life.
Bethanie Castell is a Wills and Estates lawyer at Tindall Gask Bentley. For advice about Powers of Attorney, contact (08) 8212 1077