The Artist & his Power of Attorney

Charles Blackman, one of Australia’s most acclaimed living artists, suffers from Korsakoff’s syndrome, a dementia-like memory disorder most commonly brought on by alcoholism.

Tom Lowenstein was appointed as his Power of Attorney. He recently urged the trustees of the Portia Geach Memorial Award to remove a painting of Blackman from view stating that the work is “terrible”.

Blackman has moments of lucidity and made the comment that it is a terrible painting which is why Lowenstein asked that it be withdrawn; the trustees rejected the request.

A power of attorney is a legal document that appoints and authorises someone to act on your behalf in the areas of property and financial management.

A power of attorney does not authorise anyone to make decisions, relating to lifestyle, health or personal affairs; if you want to do that you need to appoint an enduring guardian.

The person who makes the power of attorney is known as the principal; the person appointed to act for them is known as the attorney.  An ‘attorney’ means your authorised representative, this is usually a family member or close friend.

You can appoint an attorney for:

  1. a limited period, or
  2. an indefinite period.

You might draw up a limited power of attorney to enable your attorney to act for you when you are overseas, or to deal with a specific situation in another state or overseas.

A power of attorney that is unlimited as to time applies until you die or revoke it.

If you want your power of attorney to still be valid even if you lose your mental capacity after you make it, you must make an enduring power of attorney.

In this case, the power of attorney must be explained to you by a prescribed person – usually a lawyer, who must sign a certificate stating that you understood the effect of giving an enduring power of attorney – that is, that the power of attorney will still be valid if you lose your mental capacity.

The attorney has full authority to deal with your affairs, therefore you must appoint someone you trust and who will act responsibly.

The attorney must

  • act with good faith and
  • tell you of any conflict of interest that may influence their ability to act responsibly and genuinely on your behalf.

A power of attorney will operate until:

  • you cancel it
  • your attorney no longer wants to act
  • the Supreme Court or Guardianship Tribunal makes an order affecting the power of attorney.
  • the attorney or the principal becomes bankrupt or dies
  • the attorney loses their mental capacity (unless it is an enduring Power of Attorney).

 

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