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Tasmanian Powers of Attorney Fact Sheet

The Definition of a Power of Attorney

A Power of Attorney is a document authorising someone to represent or act on behalf of another person in business and financial matters. The powers granted under a Power of Attorney can be general or specific in nature. The person making a Power of Attorney is generally referred to as the 'donor'.

The different types of Powers of Attorney in Tasmania

There are various types of Powers of Attorney, the most common being:

1. Ordinary Power of Attorney - allows your Attorney to do anything that you can legally do in relation to financial and property decisions. However, this type of Power of Attorney will come to an end if you lose your mental or physical capacity to manage your own affairs.

2. Enduring Power of Attorney - gives your Attorney the same powers as an ordinary Power of Attorney, however it remains in force even if you lose your mental or physical capacity to manage your own affairs.

3. Specific Power of Attorney - as the name suggests this Power of Attorney gives your Attorney a specific power in relation to your business or financial affairs.

A Power of Attorney cannot be used to appoint an Attorney to handle medical issues. The appointment of an Enduring Guardian is required for this.

Why do you need to make a Power of Attorney?

By making a power of attorney you chose who makes decisions on your behalf if you lose the capacity to do so. It also gives you the power to outline any restrictions, limitations, or directions you would like to give the person who you appoint as your attorney. 

Mental Capacity

In order to appoint an Attorney, the Donor must understand what they are doing. That is they must have the required mental capacity to appoint an Attorney. If someone does not have the required mental capacity to appoint an Attorney then an application can be made to the Guardianship Board for the appointment of an 'Administrator'. An Administrator has similar powers of an Attorney and can be a family member, trusted friend, The Public Trustee or a Trustee Company. 

Who can you appoint as your Attorney?

An Attorney can be a single person or two or more people who are over the age of 18.  If there are two or more people appointed then those people can act jointly or jointly and severally.  If they are to act jointly then all must agree and all must sign any documents signed on behalf of the donor. If they are appoined severally then they can act as your Attorney without reference to the other appointed Attorney.

What are the duties and responsibilities of an Attorney?

Generally an Attorney must:

  • act within the scope of the power of attorney;
  • avoid conflicts of interest;
  • keep the donor's matters confidential;
  • keep the donor’s money separate from their own;
  • hold the donor’s money as trustee for the donor; and
  • perform the duties personally (that is they must not delegate the responsibilities to others).

It is very important to note that an Attorney must act honestly and in the best interests of the Donor. It is a criminal offence if the Attorney does not act appropriately.

What are the restrictions on an Attorney?

An Attorney cannot:

  • make a will for the donor;
  • exercise personal rights of the donor, for example an attorney is unable to vote on behalf of the donor;
  • accept or make appointments such as accepting an appointment as a director of a company on behalf of the donor;
  • swear an affidavit;
  • give a gift of the donor’s property.

Registration

In Tasmania a Power of Attorney is effective when it has been registered at the Titles Office. A Power of Attorney that is not registered is of no effect in Tasmania. This means that an Attorney cannot act on behalf of the Donor until such time as the registration of the Power of Attorney has been finalised by the Titles Office. Each State and Territory in Australia has their own rules in relation to the registration of Powers of Attorney. 

General Issues

Both ordinary and enduring Powers of Attorney will end on death. When someone dies, their Will, or if they die without a Will the Administration and Probate Act, will apply. 

Having a Power of Attorney in place does not take away the Donor's ability to act for themselves. The Donor can still manage thier affairs if they have the ability to do so.

Summary

Granting a trusted relative or friend a Power of Attorney is useful if you are not well, having trouble managing your financial affairs or travelling overseas.

It is strongly recommended that you instruct a solicitor to prepare your Power of Attorney to ensure that the your appointed Attorney has the legal capacity to manage your business and financial matters. 

To discuss how we can assist you in preparing and registering a Power of Attorney on your behalf, please contact us on 03 6332 9353.

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