Power of attorney query for bother in Australia?

Reply to the comment left by Peter Poupard at 09/12/2020 - 16:00
Peter, a simple power of attorney allowing Person A to sign a document on behalf of Person B does not (subject to exceptions which are not relevant to the present case) need to be registered with anyone. See https://www.legislation.gov.uk/ukpga/1971/27

Colette's comment also misses the point. The OP is not asking because his brother lacks mental or physical capacity. The brother may also want to limit the acts which can be done and not give a general power to do anything which the brother could do. For example he might want to limit the power so that it can only be used in connection with the granting or leases and other management matters for a particular property but perhaps not for the sale or mortgaging of that property.

Many of the 'official' problems mentioned above stem directly from the deliberate starvation by the Treasuries of the day of Government and Court 'service' providers. Legal Aid's destruction has been one of my hobbyhorses for years, Lord Woolf's admirable terms Access to Justice and Equality of Arms are bad sick jokes. Beyond that, the sheer underfunding and collapsing morale in what were once upon a time slick operations are woeful.

Lasting power of attorney - need for registration at the court of protection to be able to use it.

See above. Note: best to register when made. Why? Because you can't use it without registration AND it takes a minimum of four weeks (and could take 12!!). If you wait til it is needed then you have that front end time before you can use it.
I have both - finance and well being. I have registered the well being power immediately. Why? Because if you need it, for health decisions, you don't want to wait for a month to three months.
Another good reason for registering it right away is to ensure it has no errors which will cause its rejection. If that happens, you may not be able to get the giver of the power to sign it if you wait til it is needed. A relative of mine has just had that problem. You need to know for sure it is valid.

Below are the government guidelines

"Once the LPA has been signed, you need to send it to us for registration. It may then be around 12 weeks before you get the registered LPA back and can start using it. This includes a 4 week waiting period required by law."

Reply to the comment left by Ian Narbeth at 10/12/2020 - 10:02
I am aware that the brother did not lack capacity. A LPA can be used straight away, if registered and you can detail specifics in it. If you do not register it at inception then you need to prove incapaicty in the future when you need to use it. An ordinary power of attorney can do the same BUT cannot be used if the person loses capacity.

Reply to the comment left by Ian Narbeth at 10/12/2020 - 10:02
Ian, I think I mentioned lpa and ordinary and the limiting of powers in my first post. Both documents give you the ability to be absolutely specific as to what your attorney can or cannot do so not sure what you are getting at.

Reply to the comment left by colette at 12/12/2020 - 20:32Colette, you are missing my point. Unless there is a particular reason to use a lasting power of attorney, why bother? There are a lot more formalities than with a simple power https://www.gov.uk/power-of-attorney/make-lasting-power. Registration can take up to 10 weeks. As I have explained, the brother might want to limit what the attorney can do which might defeat the purpose of an LPA if the donor lost capacity.

Reply to the comment left by Ian Narbeth at 13/12/2020 - 12:32
Than you for your link to the LPA via the OPG. However,having done over 20 LPA'a on line this year for friens/family,I am familiar with this site and in fact I am registered with them. A I have consistently pointed out the poster has a choice of 2 types and in both he can be specific as to what powers should be included by his brother the donor but given how easy it is to do an lpa then this is the route I would recommend as he can be specific and take account of the fact that it can apply in the future should capacity be lost. whatever your point is then I m missing it completely.

My point is you are over-complicating matters. The OP said nothing about his brother lacking capacity so why go to the trouble of an LPA? The LPA would need to give specific authority to act while the brother still had mental capacity. An LPA is, IMHO, the wrong tool for this job. A simple PoA will work perfectly well.

None of these documents is required and all cost money, a fax (now electronic such as myfax.com), scan or email will suffice or legal electronic signature such as Docusign as I mentioned before. There really is no question to answer.

Perhaps the brother doesn't want to give a PoA especially as he is overseas, he probably prefers to be in the loop. (His residence is another reason why a lasting PoA is not suitable, he would need one local to where he lives).

Reply to the comment left by Ian Narbeth at 14/12/2020 - 10:47
and my point states that an ordinary power of attorney would do as well BUT cannot continue to be used when donor loses capacity, which you seem to have totally ignored. Given the amount of people living longer and then with dementia it is a no brainer. It is not at all "over complicated" as you state to give authority in an LPA to to be used whilst the donor has capacity it is a tick box exercise , as clearly pointed out in the document itself. On page 6 you tick a box to state whether you wish your attorney to use it as soon as it has been registered (which they can do with the donor's consent). The OPG states this is the most useful option. If the donor later loses capacity they can contunue to act for all decisisions within the LPA if it has been registered at the start. "This option is useful if you are able to make your own decisions but there is another reason for your attorney to help you, ie holiday, sign documents" etc. to quote the form itself. The benefit of the LPA is that it can continue to be used if the donor loses capacity, unlike ordinary power of attorney. On page 7 the donor can state his general preferences with regard to the property/assets or can state his "instructions" which are absoutely specific so would only relate to the property in question. You can be an LPA for someone living overseas who has assets in England/Wales you do not have to live within the vicinity of the donor. With regard to electronic signatures despite technology moving forward not all companies accept this and it would not be legal if capacity lost. If the brother is going to the trouble of looking at attorneyship then it makes sense to look at long term implications, such as mental incapacity. The cost of £82 is not exactly breaking the bank either, certainly much less than any document a solicitor would charge for and in mho the form is simple to complete. I have completed 2 in an hour this morning for finance and health/welfare for my 80 yr old neighbour. It is only as difficult as you want it to be.