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How to appoint temporary power of attorney

How to appoint temporary power of attorney

Taking control when you temporarily cannot care for yourself

Advice from SSAA Victoria’s legal counsel Peter Cooper

I wish you a happy and prosperous 2019, but I temper that with the knowledge that it will not be the case for all of us.

Following on from my 2018 article about wills, most of us do not die suddenly, passing from a state of good health into death in a short space of time.

In the world of modern medicine, there may be a period before we die when, while our bodies tick on, we cannot care for ourselves and we cannot make decisions.

The turning point from competence, where you can make your own decisions, to incompetence, where you can’t, is impossible to define or pick. It is a cruel thing to watch in those we love.

It is distressing to see loved ones who are no longer competent making bad or dangerous decisions such as continuing to drive, or shoot, or reload ammunition convinced that they are still competent and capable.

The period of incompetency may be temporary. It may be a period of unconsciousness, illness or psychosis where we cannot make decisions and then recover to find a whole lot of unpleasant things have happened in our name.

During such times you need to appoint an attorney to act on your behalf and select that person as carefully as you selected the executor of your will.

In the State of Victoria the attorney you appoint would generally hold a document called an Enduring Power of Attorney (EPOA). Especially if you own firearms.

They are powerful documents. A person holding your EPOA can take money from your bank accounts, enter into or conclude contracts in your name, buy things in your name or sell things that you own.

Many people do not like that idea and neither do I. All I can say is that the alternative of not having one can be very hard on your family if you are hit by a bus tomorrow or have a stroke and nobody is there to step into the gap on your behalf.

So, first things first. Pick your attorney.

The first principle is to have someone you trust and someone who has a firearms licence.

Typically, spouses will hold EPOA on behalf of the other, but of course spouses can be disabled or killed in the same accident. Also, when we are older our spouse may be becoming demented or failing, as are we.

Sometimes a child is appropriate, but I’m aware of more than one case where a child was very unhappy about his parents having firearms and took the first opportunity he had under an EPOA to sell the firearms through a dealer.

Do think this through. It may be that a nephew or niece may be a better attorney than a child.

As with the will, if you do not have an attorney who understands you and firearms, it is quite probable that you will never realise the true value of firearms if they need to be sold.

It is possible that a particularly beloved firearm or family heirloom will disappear into the hands of a wrong family member just because he or she has a firearms licence. I’ve lost count of the enquiries I’ve had about trying to get a family heirloom back.

If it is a valuable firearm, it may be acquired by a dealer for well below its true value. I’ve lost count of enquiries along those lines as well.

It may also be possible when your illness or incapacity is temporary, that you will recover but find yourself no longer able to go out for a shot.

So, as for wills, here are some thoughts about appointing an attorney or EPOA:

  1. Use a solicitor. The state government website has downloadable forms, but they are one-size-fits-all and do not suit firearms owners without some tailoring.
  2. If you have a website EPOA remember, if and when you lose competence, they cannot be set aside without a trip to the Victorian Civil and Administrative Tribunal.
  3. If your solicitor has no affinity or expertise with firearms, refer him or her to this article (or contact SSAA Victoria).
  4. Do not pay too much for EPOA preparation. Ask your solicitor about how to keep them simple. Do them at the same time as you do your will.
  5. Do not develop a hole-in-one mentality about your EPOA. Our circumstances change. Our health changes. The health of our attorney also changes. Keep EPOA simple and change them as necessary.
  6. If you already have an EPOA which is unsatisfactory, change it and revoke the previous one.