5 Things to Never Do When Appointing a Power of Attorney
There are two primary enduring powers of attorney available in Victoria. One is for medical treatment, and the other covers financial, legal and personal matters. An attorney appointed for you must act in your best interests, but not in the best interests of your other family members or beneficiaries of your estate. Bearing that in mind, of course you need to choose someone who you trust, or perhaps appoint a number of people that will keep checks and balances on each other. But there are also other things that you need to keep in mind when appointing a power of attorney:
Binding Death Benefit Nomination
You should never give the power to your attorney to be able to change your binding death benefit nomination. You have made that binding nomination for a reason, even if someone else doesn’t think it’s the best decision.
If you do not specifically exclude this power from your attorney, then they automatically have this power under an enduring power of attorney.
You should specifically state in your power of attorney document that your attorney is allowed to renew your binding death benefit nomination, but not change or revoke it.
If you have children or a spouse or other person who is financially dependant, then you should not forget to give your attorney the power to provide funds for these people. If you forget to include this power in your enduring power of attorney document, then it may be contrary to the attorney’s powers to use your funds for other people (because on the face of it, it is not in your best interests).
Social Media Accounts and Digital Assets
Do not forget that a lot of your life may now be online or stored remotely under the control of an online business. If you forget to specifically give the power to your attorney to deal with these accounts or assets, then some of these business may not recognise the power of attorney at all. The primary reason is that most of these businesses are not based in Australia, and they are not familiar with the board powers that an attorney gets under the enduring power of attorney. It will take a lot of time and effort to convince them that your attorney has the power, unless it is specifically stated in the enduring power of attorney document.
It should be obvious that you should never select the wrong people to be your attorney, but in determining who is right and wrong for the role, there are some important things to keep in mind:
You should be realistic in terms of the personality types and relationships between the people you select, and whether you make them joint attorneys, or whether they can act separately. There is no dispute resolution process set out in an enduring power of attorney document, so if you make your appointments work jointly, and they don’t agree on something particular, then they will have to go to VCAT to resolve the issue.
Another thing to bear in mind when you’re selecting the right people to be your attorney, is whether they are even eligible to do so or not. You cannot appoint someone under 18 years of age, which should be obvious. You cannot appoint someone that has been convicted of a fraudulent offence. You also cannot appoint someone who is a care worker employed to care for you, or someone you is providing aged care accommodation to you.
Never have someone that you appoint as your attorney also witness the enduring power of attorney document, because it will not be valid. Make sure you get the proper witnesses, because the laws have changed for signing these documents, to help protect you and others. Enduring powers of attorney now need to be witnessed by independent witnesses, at least one of which must be able to sign an affidavit. That is a solicitor, a justice of pease, a police office above the rank of sergeant, or a medical practitioner.