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Creating an enduring power of attorney

An important aspect of any Estate Plan is a valid Enduring Power of Attorney. This will allow your appointed Attorney to deal with your affairs as you intend and without restraint when you are unable or incapable of doing so yourself.


The power

In appointing an Enduring Power of Attorney you are giving them the power to perform tasks such as:

  • dealing with your bank accounts including transferring money out of your account
  • selling your home or other property
  • dealing with the shares you own, whether the company be private or publicly listed
  • taking over the operation and control of a business when you are the sole shareholder
  • making decisions regarding your personal maintenance such as where you live and what you do on a day to day basis once you have lost the capacity to make those decisions for yourself.

An Enduring Power of Attorney continues to exist up until the point of your death, unless you have revoked the power prior to that time. After your death your Will comes into play and the executor of your Will shall have the power to deal with your wishes and affairs.

What are the implications for you?

You must carefully consider the power that you are granting to your Attorney. If you are not precise you may find yourself in a situation where your Attorney’s powers are either above or beyond your intentions.

For example, if you provide your Attorney with the capacity to make decisions regarding your financial affairs then your Attorney has the power to deal with your property or finances. This includes selling property, managing investments and shares, and accessing cash to pay bills.If it is not your attention to allow your Attorney to deal with your property then you can limit the Attorney’s power by specifically excluding that right in the Enduring Power of Attorney.

What do you need to do?

To avoid a situation in which your Attorney is not able to act on your behalf in all situations contemplated by you or in which the power you have given them is more extensive than you anticipated, you should seek legal advice from a specialist Estate Planning lawyer.

The benefit of receiving legal advice before entering into an Enduring Power of Attorney is that they can discuss the implications of appointing an Attorney in your particular circumstances and ensure that it is completed to achieve your intended outcome.

For more information

Redchip has a specialist Estate Planning and Business Structures team that will look at your specific needs to find the right Estate Planning solutions for you.

To arrange a confidential and obligation free discussion about Enduring Powers of Attorney or your Estate Planning needs, please contact Ian Tindale at iant@redchip.com.au or Emily O’Brien at emilyo@redchip.com.au, or please phone our office on (07) 3223 6100.

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