How to choose a power of attorney

Estate planning expert Rod Cunich answers two questions today about members’ power of attorney issues.

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Q. Bernie*
I have two children with disabilities and no other family. I am 84 years old. My solicitor is executor for my will, but I have nobody to take on the role of enduring power of attorney. What would you suggest?

A. If there is no family or friend willing to take on the role, then you’ll have to approach the public guardian in your state. Each of these bodies has staff who will provide the service. I’d recommend that you make an appointment to see your local public guardian at your first opportunity, so that you can find out what they can offer. If you have sufficient funds, you might also consider one of the commercial trustee companies, many of whom offer excellent services – but at a significant cost.

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Q. Wanda*
My partner and I made new wills, enduring guardianship and power of attorney documents in NSW last year. We have now relocated to Queensland and our NSW solicitor advised that we need to update these documents with a Queensland solicitor to reflect our new address/state. Can you please advise if this is necessary?

A. It is rarely necessary to change your will merely because you change the state or territory you live in within Australia. There may be incidental reasons that require changes (they are too obscure to attempt to cover in this reply).

I’d recommend having a solicitor check your will to see if there is a particular reason for changing it, just to be certain. Each state and territory has its own laws governing enduring powers of attorney and enduring guardianship and, as a consequence, the documents vary in both form and substance from state to state. 

There is no urgent need to swap over to the local version of these documents as each jurisdiction largely recognises the documents from other states and territories, although if your document purports to grant a power not available under the law in your new jurisdiction, then problems can arise.

I’d recommend that when you have the time that you re-do these documents, so they comply with the law in your new location. Making the change may avoid uncertainty and will assist with your (new) local authorities, who may not be familiar with the documents from other jurisdictions.

* Not their real names.

Rod Cunich is a lawyer and author with more than 30 years’ experience who specialises in estate planning. If you have a question for Rod, simply email it to [email protected]. His book, Understanding Wills and Estate Planning, has recently been updated and is available from all good bookshops.

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