It Depends – Do I need a medical certificate to start acting as an attorney?

It Depends – Do I need a medical certificate to start acting as an attorney?

02 November 2021 Authored by: Katelyn Gillert   |   Topics: Estate planning, Estate administration and disputes

In this edition of ‘It depends’, lawyer Katelyn Gillert talks about whether you need to have a medical certificate before you can begin acting as somebody’s attorney.

VIDEO TRANSCRIPT

Welcome to It Depends. Today, we’re going to discuss whether you need to have a medical certificate before you can begin acting as somebody’s attorney.

What is an enduring power of attorney?

An enduring power of attorney is a legal document that allows someone, referred to as ‘the principal’ to allow someone else to make decisions on their behalf. An enduring power of attorney will continue even after they’ve lost capacity and when they cannot provide instructions to their attorneys anymore.

What kinds of decisions can I make as an attorney?

An attorney can be appointed to make financial decisions, personal or health decisions, or both. The principal can appoint the same attorneys to make decisions for financial and personal and health matters, or they can appoint different attorneys to make decisions for different matters. Financial matters will include decisions about how income is invested, about selling assets, paying debts or paying for accommodation or maintenance fees for the principal. Personal and health matters will include decisions about day-to-day life, where the principal lives and who they live with, daily decisions such as dress and diet, and also consenting to or refusing medical treatment and life sustaining procedures.

When can I start making decisions as an attorney?

This depends and this depends on the kind of matter that you are making a decision about. The principal can specify that an attorney for financial matters can only start to make decisions either once they have lost capacity, immediately, so when the document is signed, or on another occasion or date that the principal specifies. For personal and health matters, an attorney can only start making decisions once the principal has lost capacity to make decisions on their own.

Do I need a medical certificate before I can start acting?

Again, it depends. And it would depend on the matter that you were making a decision about and also what the terms of the enduring power of attorney document says. You will need to have a medical certificate that confirms the principal has lost capacity to make decisions on their own if you are making decisions for personal or health matters or you are making decisions for financial matters and the principal has specified in a document that your powers do not begin until they have lost capacity. Importantly, this means you cannot make decisions about those things until you have a medical certificate. You should also carefully read the enduring power of attorney document to make sure that the principal has not put other requirements in there, such as requiring more than one medical certificate obtained from different doctors.

Further help with enduring powers of attorney

If you do have any other questions about acting as an attorney or enduring powers of attorney in general, please contact a member of our team.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.