Power of Attorney

A power of attorney is a legal instrument created by a person called the donor. It can be a simple form signed when the donor is in good health. It allows another specifically appointed person called an attorney to take actions on behalf of the donor when the donor is absent abroad or incapacitated in some way, possibly through illness.

There are two types of power of attorney:

  1. There is a general power of attorney that is given by the donor and ceases as soon as the donor becomes incapacitated or arrives home from abroad. A general power of attorney can be revoked and all actions taken by the attorney must be capable of being ratified by the donor.
  2. An enduring power of attorney is created by person who is in good health but only comes into effect when the donor becomes incapable of managing his or her own affairs through mental illness. These powers can be extensive and may include personal care decisions to be made on the donor’s behalf. Personal care decisions include where and with whom the donor will live; who the donor may or may not see; and what rehabilitation the donor should get. All these powers can be specifically chosen by the donor when creating the power and may be made subject to conditions. Both forms of power of attorney cease on the donor’s death.

Among the documents required for the purposes of an enduring power of attorney is a statement from a doctor confirming the donor’s mental capacity; a statement from the donor confirming that he or she understands the effects of creating the power; a statement from a solicitor confirming that he or she is happy that the donor understood the effect of creating the power; a statement from the solicitor that the donor is not acting under undue influence; two notices served on the next of kin; and signed acknowledgements from the attorneys after the power is created.

The process of registration then repeats the exercise to the extent that notices are served and a doctor’s certificate is obtained this time confirming the donor’s mental incapacity. The process of registration only occurs where it is necessary to give effect to the enduring power.

A power of attorney may be revoked at any time prior to registration. After registration the enduring power of attorney can only be revoked by application to the Court. This application can be made on the basis, for instance, that the attorney is unsuitable or that the donor was acting under undue pressure at the time of the creation of the power.

While the enduring power of attorney provided for personal care decisions the attorney is not authorised to make health care decisions on the donor’s behalf. This is a matter for the donor’s medical attendants.