Enduring Power of Attorney & Personal Directives

Email: B. Langridge

What is Enduring Power of Attorney?

A Power of Attorney is a document whereby you give someone the legal authority to act on your behalf. That person can sign documents which will legally bind you, access your bank accounts and generally do most of the things with respect to your estate which you cannot do yourself.

Prior to 1991, a Power of Attorney would come to an end when the Donor became incompetent. In 1991 the legislature amended the Powers of Attorney Act to allow you, through the use of an "Enduring Power of Attorney", to appoint an Attorney who could continue to manage your financial affairs even if you did become unable to do so yourself.

There are two sorts of Enduring Powers of Attorney. An immediate Power of Attorney, which comes into effect as soon as it is signed, and continues in the eventuality of your inability to manage your own affairs. An immediate Power of Attorney does not deprive you of the right to manage your own affairs, it only authorizes your Attorney to do so as well. Alternatively, there is a "Springing Power of Attorney" where you can indicate that your Attorney's power to assist you with your financial affairs only arises if and when you become incompetent.

What is a Personal Directive?

A Power of Attorney allows the person you appoint to manage your financial affairs on your behalf. However, it has no effect with respect to decisions of a personal nature. These personal decisions include all aspects of your well being except those regarding your financial matters.

It also allows someone to consent to health care treatment on your behalf if you lack the capacity to do so yourself. An agent appointed under a Personal Directive only has the right to make decisions for you if you become incapable in doing so yourself. So long as you are competent, you continue to make your own decisions.

Many people refer to a Personal Directive as a "Living Will". They often wish to include instructions as to how they want their health care managed in their final days. They wish to make it clear to their doctors, that they wish to die with dignity rather than being maintained artificially, when there is no hope of their eventual recovery.

Both the "Springing Power of Attorney" and the "Personal Directive" require someone to certify that you are incompetent. This can be done by one or more doctors, or a combination of a doctor and family members, whatever the donor is most comfortable with. In the event that you should be unable to care for yourself, and have not executed an Enduring Power of Attorney or Personal Directive, it would be necessary for your family to make an application to the Court to have someone appointed as a Trustee, who has the same powers as a Power of Attorney, and a Guardian, which replaces the Personal Directive. This is an expensive and time consuming exercise, and entails significantly more reporting duties than would be necessary had the Power of Attorney and Personal Directive been in place.

You can revoke either a Power of Attorney or Personal Directive at any time as long as you are competent. Anyone appointed under either document, has an obligation to act strictly in your best interest, and can be called upon to answer to the Court for any misuse of their authority.