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Enduring Power of Attorney FAQ Note:

Q: What is a Power of Attorney?

A: A Power of Attorney is a document in which one person (the Donor) appoints another person (the Attorney) to act for him or her. There are many reasons why you might want to appoint someone else to look after your financial affairs. For example, if you are going to be out of the country for a lengthy period of time, you might want someone to do your banking while you are gone. If you are approaching old age, you may want to give a Power of Attorney to a person you trust so that he or she can manage your property for you.

Q: Will a Power of Attorney still be valid after the Donor dies?

A: NO. The Donor   

Q: Who is the Donor?

A: The Donor is the person who needs someone else to act for him or her. The Donor must be an adult. The Donor must be capable of making his or her own decisions at the time the Power of Attorney is executed (signed).

Q: What is "incapacity"?

A: A person is incapable of managing property if the person is unable to understand information relevant to making a decision about the management of property, or if the person cannot appreciate the foreseeable consequences of making (or not making) a decision about the management of property. The Attorney   

Q: Who is the Attorney?

A: The person appointed by the Donor is called the Attorney. The Attorney is the person who acts for the Donor. Q: Does the Attorney have to be a lawyer? A: No, there is no need for the Attorney to be a lawyer. (See below for Attorney qualifications.)

Q: What qualifications does an Attorney need to have?

A: The Attorney must be a capable adult. The Attorney cannot be an undischarged bankrupt. The Attorney should not be the owner, operator or employee of a nursing home or extended care facility in which the Donor is a resident.

Q: What qualities should I look for in an Attorney?

A: Your Attorney must be someone whom you trust completely. In addition, remember that your Attorney will have complete authority to deal with your financial and legal affairs (subject to any limitations or restrictions specified in your Power of Attorney). You should ensure that the person you choose has adequate financial management skills and sufficient time to handle your affairs properly. Your Attorney must be available when required, be able to objectively make decisions and be able to keep accurate financial records.

Q: What are the responsibilities of my Attorney?

A: Your Attorney has the following responsibilities: * to act in your best interest; * to keep accurate records of dealings/transaction undertaken on your behalf; * to act towards the donor with the utmost good faith and to avoid situations where there is a conflict of interest; and * to keep the donor's property and money separate from their own.

Q: Is it okay to appoint a relative as Attorney?

A: Yes, people often appoint relatives as Attorneys.

Q: Can my Attorney also be a beneficiary in my will?

A: Yes.

Q: What are Joint or Joint & Independant Attorneys?

A: Sometimes a Donor will want to appoint two Attorneys. In that case the Donor must decide whether the Attorneys will be 'joint' Attorneys or 'joint and ' Attorneys. Joint Attorneys must act together. They must both agree before any action can be taken, and they must both take the same action at the same time. If one is absent, no action can be taken. Joint and Attorneys can act together or individually. Either one can take an action without consulting the other. If one is absent, the other can still act. Place and Time   

Q: What is "Jurisdiction"?

A: A jurisdiction is a place that has its own laws. It is a territory with boundaries, such as a state or a province. For example, California is a jurisdiction in the United States, Ontario is a jurisdiction in Canada, Scotland is a jurisdiction in the United Kingdom and Queensland is a jurisdiction in Australia.

Q: What is the "Governing Law"?

A: A Power of Attorney is governed by the law of the jurisdiction where the actions of the Attorney will be performed. Normally, this is the place in which the property of the Donor is located. Therefore, it is not a good idea to appoint an Attorney who resides in a different jurisdiction, unless the property or assets you want the Attorney to deal with are also in the different jurisdiction. If you anticipate that your Attorney will be acting in more than one jurisdiction, you should probably make separate Powers of Attorney for each jurisdiction. Examples: * If your bank accounts and other property are located in the jurisdiction where you live, you will want to appoint an Attorney who lives in the same jurisdiction. * If you live in one jurisdiction but have a bank account or other property someplace else, and you want an Attorney to deal with that property, you will want to choose the place where the property is located as the governing law, and appoint an Attorney who is located in (or is willing to travel to) the same jurisdiction as the property.

Q: When does a Power of Attorney start?

A: A general Power of Attorney starts immediately upon execution. An enduring Power of Attorney starts when it is registered with the Office of the Public Guardian or immediately dependant on how it is set up(Office of Care and Protection in Northern Ireland).

Q: How/when does a Power of Attorney end?

A: An ordinary Power of Attorney ends automatically when the Donor becomes mentally incapacitated or dies. An Enduring Power of Attorney ends automatically when the Donor dies. As long as you are mentally competent, you may revoke your Power of Attorney at any time by notifying your Attorney (in writing) that the Power is revoked and destroying the original Power of Attorney. Otherwise, a Power of Attorney continues in effect indefinitely, unless the document specifies an end date.

Q: Can I revoke my Power of Attorney after I have become incompetent?

A: A person who is incompetent cannot revoke an Enduring Power of Attorney. However, an ordinary Power of Attorney is automatically revoked when the Donor is found to be incompetent.

Q: How do I revoke my Power of Attorney?

A. You can revoke, or cancel, a Power of Attorney by giving your Attorney a written notice saying that his or her power has ended. Also, you may make a new Power of Attorney that states your previous Power of Attorney is now revoked (but you must still notify the previous Attorney of the revocation). Third parties (e.g., people or organizations that have been dealing with the Attorney) must also be notified. Additionally, if your Power of Attorney is registered you must also register the revocation. Please note that if you fail to inform your attorney of the revocation, your Attorney can legally continue to make decisions on your behalf. Signing Details   

Q: What are the requirements for signing, witnesses and notarisation?

A: Different jurisdictions have different signing requirements (witnesses, etc.) for Powers of Attorney, which may depend on whether or not the Power is enduring, and how it is intended to be used. Some financial institutions have their own requirements for non-enduring Powers, so it is a good idea to contact them for advice prior to signing.

Q: What does it mean to "execute" a document? A: When a person "executes" a document, he or she signs it with the proper "formalities". For example: If there is a legal requirement that the signature on the document be witnessed, the person executes the document by signing it in the presence of the required number of witnesses. Q: How should I sign my Power of Attorney document?

A: To be valid, you must sign the document with your usual check signing signature. The signing must occur in the presence of your notary or witness(es). After you have signed your document in front of your notary or witness(es), your notary or witness(es) must sign on the applicable page of the Power of Attorney.This must occur in your presence.

Q: Can anybody act as a witness?

A: Your witness(es) cannot be your spouse, partner, child, your Attorney or alternate Attorney, or the spouse of your Attorney or alternate Attorney. Some jurisdictions disallow witnesses that are mentioned in your will, either as beneficiary or executor/executrix. You should generally avoid having witnesses that have any financial relationship with you. The witness(es) must be of legal age in your jurisdiction, they must have capacity and be mentally capable of managing their property and making their own decisions.

Q: Does it matter where the Power of Attorney document is signed and witnessed?