Some things to keep in mind before granting someone Power of Attorney

by The FindLaw Team

It’s often said that the most important thing in life is good health, and if we’re fortunate, we’ll all get to experience a long and prosperous existence. However, what if the worst happens? Have you planned for the possibility that you can no longer handle your personal affairs? Yes, it’s rather morbid to assume the worst, but planning for the worst case scenario may save us from difficulties later in life. We’d all like to hope that we’ll stay forever lucid, but there may come a time when our capacity to make sound decisions regarding our lives may be diminished due to circumstances beyond our control. Therefore, granting a person the power of attorney to act on our behalf may be a possibility for some readers.

What is a power of attorney?

A power of attorney is when one person (the donor) authorises another person (the donee or attorney) to make decisions regarding a donor’s financial, legal, medical or family matters. The power can be either general or specific, depending on the terms set out in the document.

Can anyone make a power of attorney?

In order for a power of attorney to be valid, there must be a few general requirements that need to be met for the document to be validly executed:

  • the person must be at least 18 years of age
  • the person must understand the powers granted to a donee
  • the donor must outline the powers which may still be retained.

It is important to note, that in order for a person to issue a power of attorney, they must have the capacity to understand the powers that are being granted to a donee. Therefore, a person who has a mental disability, in most cases cannot grant a power of attorney because they may lack the capacity to understand the nature and effect of the document.

Enduring powers of attorney

An enduring power of attorney is when one person (the appointer) bestows an authority to make personal or lifestyle decisions on behalf of another (the guardian).

In order for a document to be valid granting a person an enduring power of attorney, the following requirements must be met:

  • both the appointer and guardian must be at least 18 years of age
  • the document must be witnessed by at least two people who aren’t a party to the agreement, or related to the appointer or guardian
  • one of the witnesses must be a Justice of the Peace, a Notary Public or a legal practitioner
  • the guardian must not be professionally involved in the care and treatment of the appointer.

An appointer can withdraw an enduring power of attorney at any time by signing a document specifically revoking the enduring power of attorney.

We can plan for the worst, yet hope for the best when granting someone the power of attorney. However, you should always seek the appropriate legal advice when considering granting someone the power of attorney. 



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