Enduring Financial Powers of Attorney
Published: September 2009
Powers of Attorney have been in existence for many decades. Although there are many varieties of Powers of Attorney that can be granted by individuals and by corporations, the Powers of Attorney which have received statutory recognition in Victoria are:
- General Powers of Attorney
- Enduring Financial Powers of Attorney
- Enduring Medical Treatment Powers of Attorney
- Enduring Powers of Guardianship.
In a group of legal articles dedicated to Powers of Attorney over a number of months we will consider the desirability of the various Powers of Attorney. The article for this month focuses on Enduring Financial Powers of Attorney. These are also known as Enduring Powers of Attorney (Financial).
An Enduring Financial Power of Attorney appoints the Attorney to act on behalf of the Donor in much the same way as a General Power of Attorney, but it goes further and expresses that the Attorney has authority to act notwithstanding the incapacity of the Donor. This document has achieved much greater levels of acceptance in the business and general community. It is possible (as is the case with a General Power of Attorney) to appoint one or more Attorneys to act jointly, or to act jointly and severally. It is also possible to attach conditions or limitations on the exercise powers under the Enduring Financial Power of Attorney and to impose time limits as to when the Attorney’s powers will commence and end or periods during which they will be operative. It is often preferable in a family situation for an Enduring Financial Power of Attorney to be as flexible as possible and therefore that no conditions or limitations be imposed on the exercise of powers. However, there are also many instances where the Donor of the Enduring Financial Power of Attorney will wish to protect his or her best interests by imposing terms and conditions as to the use of the document. A common misunderstanding also arises in relation to the expression “Financial” within the document as, although this expression is used, the applicable legislation does not confine the operation of the document to financial matters alone, but it can also cover most legal and business situations.
It is important to obtain reliable legal advice - having regard to your own individual requirements– as to the appropriateness of the various available Powers of Attorney for your specific personal situation. It may be that all that you require is an Enduring Financial Power of Attorney but, depending upon your specific situation and requirements, it may be that it is also necessary to consider the usefulness of putting in place other Powers of Attorney, including General Powers of Attorney, Enduring Medical Treatment Powers of Attorney and Enduring Powers of Guardianship. These other Powers of Attorney will be considered in separate articles.
Disclaimer
The facts and circumstances of every case are different. The above article is not intended as, nor should it be construed as, legal advice as to the subject matter of the article. Should you have legal issues that are similar to above then you should not place any reliance on the content of this article but, instead, you should seek legal advice.
Related Practice Areas: Wills & Power of Attorney
