The form of power of attorney (‘POA”) now used in NSW is a very simple but often misunderstood form.
Whilst the standard form is simple, it will often be appropriate to make significant changes to it to reflect the individual circumstances of the person giving the POA.
The issues that may need to be covered by a POA are constantly evolving. A good example of this is the treatment of so-called “digital assets” which are becoming more and more important to all of us.
Research in the USA indicates –
- More than half of individuals over 65 use the Internet;
- 95% of people have an online presence from the age of 2; and
- A representative sample of Internet users had, on average, 25 passwords.
So what happens to our online presence should we lose capacity? It would certainly be reasonable to expect that a POA given without qualifications should allow an attorney to access information and deal with assets online. Unfortunately, the practicality is not that easy, particularly when the relevant account can only be operated online.
At a conference I recently attended, the presenter recounted a case that he had recently been involved with where an elderly lady (let’s call her “Edna”) had placed a large amount of money into an online investment account. She had been “cyber safe” and kept her pass words and indeed the existence of the account to herself.
At the age of 78, Edna suffered a severe stroke and lost capacity. She had previously given a standard form POA but her attorney was not aware of the account until receiving a letter from the financial institution notifying Edna of changes to unclaimed monies legislation entitling the Commonwealth to take any money from a person’s bank account which had not been operated for 3 years. Ironically, that is what happened to Edna’s money and ultimately it took several years and much expense before it could be retrieved and accessed by the attorney. These difficulties could have been avoided had Edna –
- specifically dealt with digital assets and information in her POA; and
- left her password and account details in a form that could be accessed by her attorney readily if the need arose.
At Everingham Solomons we can provide expert advice on POA issues because Helping You is Our Business.
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