Questions to ask yourself when making an enduring power of attorney
Sep 05, 2017An enduring power of attorney is a powerful document.
In the case of Szozda v Szozda [2010] NSWSC 804, the Supreme Court explained 2 fundamental questions that clients should ask themselves when making an enduring power of attorney:
"First, is it to my benefit and in my interests to allow another person to have control over the whole of my affairs so that they can act in those affairs in any way in which I could myself act - but with no duty to seek my permission in advance or to tell me after the event, so that they can, if they so decide, do things in my affairs that I would myself wish to do (such as pay my bills and make sure that cheques arriving in the post are put safely into the bank) and also things that I would not choose to do and would not wish to see done - sell my treasured stamp collection; stop the monthly allowance I pay to my grandson; exercise my power as appointor under the family trust and thereby change the children and grandchildren who are to be income beneficiaries; instruct my financial adviser to sell all my blue chip shares and to buy instead collateralised debt obligations in New York; have my dog put down; sell my house; buy a place for me in a nursing home?"
"Second, is it to my benefit and in my interests that all these things - indeed, everything that I can myself lawfully do - can be done by the particular person who is to be my attorney? Is that person someone who is trustworthy and sufficiently responsible and wise to deal prudently with my affairs and to judge when to seek assistance and advice? The decision is one in which considerations of surrender of personal independence and considerations of trust and confidence play an overwhelmingly predominant role: am I satisfied that I want someone else to be in a position to dictate what happens at all levels of my affairs and in relation to each and every item of my property and that the particular person concerned will act justly and wisely in making decisions?"
A succinct reminder of why you should give great thought as to who you should appoint as your attorney, considering the power that they are given to exercise on your behalf.
Contact the Shire Legal team if you have any questions.
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