FAQ – Power of attorney kit

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Why should I have a power of attorney?

A power of attorney document allows you to formally appoint someone to make decisions for you. In some cases, the person appointed will be able to make decisions for you when you are unable to do so yourself.

A power of attorney is different to a will. A will records how you want your estate to be distributed after your death, while a power of attorney document enables a specified person, or persons, to manage certain aspects of your affairs, such as financial, property, legal matters that relate to your financial or property affairs, lifestyle, medical or matters that relate to your care and welfare while you are still alive.

Who can make a power of attorney?

Anyone 18 years or over who has capacity to do so (meaning you have the mental ability to know and understand what you are doing and why) can make a power of attorney.

What happens if I don’t make a power of attorney?

You will not have control over who makes decisions on your behalf, which may lead to conflicts and delays in decisions being made for you if you are unable to make them yourself. Depending on the nature of the decision, a court or other administrative body may appoint an independent person to take care of your financial, lifestyle and/or health decisions. Depending on your requirements this person may be your spouse or partner, an unpaid primary carer, a relative or an organisation such as a trustee company.

What is included in the kit for your State or Territory?

The kit includes:

  • a comprehensive planning guide;
  • a glossary of key terms to help you understand the information in the kit;
  • a personal details schedule to assist you in planning your power of attorney document; and
  • clear step-by-step instructions to help you complete your document.

The appointment documents in the kit are tailored to each State and Territory and are detailed below:

Victoria

  • General non-enduring power of attorney
  • Enduring power of attorney
  • Enduring power of attorney (Medical treatment)
  • Supportive attorney appointment
  • Revocation forms for all of the above

New South Wales

  • General power of attorney
  • Enduring power of attorney
  • Appointment of enduring guardian
  • Revocation forms for all of the above

Australian Capital Territory

  • General power of attorney
  • Enduring power of attorney
  • Revocation forms for all of the above

Queensland

  • General power of attorney
  • Enduring power of attorney (long-form version)
  • Revocation forms for all of the above

Tasmania

  • General power of attorney
  • General particular power of attorney
  • General enduring power of attorney
  • Particular enduring power of attorney
  • Appointment of enduring guardian
  • Revocation forms for all of the above

South Australia

  • General power of attorney
  • Enduring power of attorney
  • Advance care directive
  • Revocation forms for all of the above

Northern Territory

  • General power of attorney
  • Advance personal plan
  • Revocation forms for all of the above

Western Australia

  • General power of attorney
  • Enduring power of attorney
  • Enduring power of guardianship
  • Revocation forms for all of the above

When is the power of attorney kit unsuitable? When should I consider a face-to-face appointment?

If you have complex legal, medical or financial affairs or guardianship needs or issues, you should get professional estate planning and/or legal advice. For example, you should seek such advice if:

  • you have problems completing any aspect of the forms;
  • you have a complex family situation, complex medical issues or complex financial arrangements (which could involve substantial assets or arrangements involving trusts);
  • your appointment of an attorney or guardian is likely to be challenged by disgruntled persons;
  • you have concerns about your capacity to appoint an attorney;
  • you intend to use the power of attorney document outside of Australia, or in a different State or Territory; or
  • the person who intends to use the kit is visually impaired or unable to read or write in English.

If any of these circumstances applies to you, or you are unsure about how to proceed, you must seek the assistance of an estate planning professional.

Are the power of attorney documents in the kit legally valid?

The power of attorney documents in the kit are legal documents tailored for each State and Territory within Australia. However, you should keep in mind:

  • that the documents need to be completed correctly in order to be valid;
  • any limitations outlined in the instructions section of the kit which may affect the validity of the document; and
  • you should purchase the kit that has been designed for the State or Territory in which you intend to use the power of attorney documents.

If you are unsure, you should seek professional estate planning or legal advice.

Does a power of attorney have to be in writing?

Your power of attorney document must be in writing.

Who can witness the Power of Attorney documents?

All power of attorney documents need to be witnessed. Witness requirements are different for each power of attorney document and differ for each State or Territory. Clear instructions on the witness requirements relevant to each State and Territory are provided in the kit and should be strictly complied with to ensure the document is valid.

How often should a power of attorney be reviewed?

Your circumstances may change and the person appointed to be your attorney now may not be the right person to be your attorney in the future. We recommend you periodically consider whether:

  • your appointed attorney continues to hold your trust and continues to be a person whose interests do not conflict with your interests;
  • someone else may be more suitable for the role, for reasons such as age, health, location and level of contact; and
  • your circumstances, or your attorney’s circumstances, have changed such that your existing attorney is no longer suitable for the role, or it is no longer legally permissible for them to perform the role.

Will my power of attorney document remain valid if I move to another State or Territory within Australia?

In general terms, if you move from one State or Territory to another, the document from the original State or Territory will remain valid. However, different States and Territories have slightly different requirements. As a matter of practicality, a move interstate is a good opportunity to review whether your nominated attorney is able to fulfil his/her duties from across State or Territory borders.

Will my power of attorney document remain valid if my attorney moves to another State or Territory within Australia?

The validity of a document is not impacted by your attorney’s move interstate. However, as a matter of practicality, if your attorney no longer lives close to where you live, they may have difficulty fulfilling their role given the possible delays involved in approving transactions, or making other important decisions, from a distance. In some cases, if you have appointed an alternative or substitute attorney, they may be able to act in place of the original attorney.

Can I purchase the power of attorney kit for someone else?

Yes, however it is important to make sure the kit being purchased is for the State or Territory in which the intended user proposes to use the power of attorney documents, as each State and Territory has its own laws for the types of power of attorney documents that are able to be used, how a power of attorney must be prepared, signed and witnessed, and how the power of attorney may be used.

How and when may I revoke a power of attorney?

You can revoke your power of attorney at any time when you have capacity to do so by telling your attorney and collecting and destroying the original documents under which your attorney was appointed. We recommend that, if you wish to revoke the appointment of your attorney, you complete the relevant revocation form in the kit and give a certified copy to your attorney and record the process of how you advised them. You should also consider speaking to the organisations (such as banks) with whom your attorney may be dealing to ensure your attorney does not continue to act on your behalf after the revocation.

Who should I appoint as my attorney?

The choice of attorney is extremely important. Trusted family and friends can be appointed as your attorney. Professionals such as trustee companies and solicitors can also be appointed, but usually are only able to be appointed for financial matters, not lifestyle and medical matters. The kit contains information on the choice and role of an attorney to assist you in making your appointment decisions.

I need further assistance in writing my power of attorney, what can I do?

If you need further assistance, we recommend you contact an estate planning professional. If you live in Victoria you can contact State Trustees on (03) 9667 6444, or 1300 138 672 from outside of Melbourne, to discuss your specific needs. Or you can register for a face-to-face appointment to write your power of attorney document with an estate planning professional using our online booking form.
If you live outside Victoria, you can contact your local public trustee office, the contact details of which are available on the relevant website listed below:

Is it safe for me to enter my credit card details online?

The State Trustees website has an SSL encryption to ensure credit card details are securely handled. Our payments are processed via Payment Express which are fully certified as Visa AIS and MasterCard SDP (PCI-DSS) compliant at processor level and employ industry best practices while processing your payments. For more information on Payment Express please visit: www.paymentexpress.com