Power of attorney guide
At Heartland we are proud to have helped over 21,000 Australians live a more comfortable retirement with our reverse mortgage. We aim to provide customers with peace of mind and have a culture that places significant importance on the duty of care we have for every customer.
Subject to Heartland’s assessment and approval, our loans may be signed for by a power of attorney (POA), or through a guardianship or administration order (this is to act as an ‘agent’). They also may, after settlement, commence acting on behalf of a customer. However, Heartland takes extra care when assessing and approving loans under power of attorney to ensure that they are suitable.
This guide does not constitute legal or professional advice. If you require assistance you should obtain independent legal advice.
Answers to frequently asked questions
There are two types of powers of attorneys that are used for managing a donor’s interests (including finances): general and enduring.
- customer lacks mental capacity or cannot physically sign for themselves; and
- funds will benefit the nominated borrower.
The loan purpose will always be assessed. Funds can only be paid into account in the name of the nominated borrower, to their lawyer, or to a debtor on their behalf. Gifting will not be accepted as a loan purpose for a loan signed for by a customer agent.
- funds are for benefit of nominated borrower(s);
- reason why they cannot sign; and
- the power has not been revoked.
Under an enduring power of attorney, it is most likely to be the attorney who will decide when the donor loses capacity. For this reason, Heartland requires the lawyer completing independent legal advice to certify that the customer cannot sign in our letter of comfort.
However, only a medical practitioner can give a professional opinion on whether someone has lost capacity to make their own decisions. In some cases, the power of attorney may only came into effect if evidence is provided by a medical practitioner. If in doubt (of capacity or lack thereof) Heartland’s process is to request a medical certificate.
- jointly - means that all must agree to decisions and every document must be signed by all POA’s listed.
- jointly and severally - means that any POA listed can make a decision and sign documents, either together (jointly) or without the others as an individual (severally).
- if a POA has passed away, a certified death certificate will be required.
- whether it is general or enduring;
- that it is for financial matters;
- the commencement date and duration of appointment;
- if general, if it covers loss of capacity;
- that it has been formally signed, accepted and witnessed; and
- any specific conditions or restrictions (i.e. does not include sale of property).
- act in the donor’s best interests, except as otherwise noted specifically in the POA;
- make the same decision that the donor would make;
- keep accurate records of interactions, transactions, and keep these separated from their own assets; and
- avoid any conflict of interest.
GuardianshipA guardianship involves making personal, medical and lifestyle decisions about a person’s work, living arrangements or medical care and treatment.
Administration is related to financial decision making regarding certain financial decisions, such as purchasing or selling property or assets, paying debts and investing money.
Differences between jurisdictions
- guardians in QLD, SA, TAS, VIC, NSW and WA, cannot make financial decisions for the person they represent.
- guardians in ACT and NT can make financial decisions.
ObligationsAn administrator must do the following:
- protect the represented person from abuse, exploitation and neglect;
- make decisions which are in the represented person’s best interests;
- take into account the represented person’s wishes; and
- encourage the represented person to make their own decisions, where possible.
If you are looking to be added to a loan post settlement, please contact Heartland’s Customer Care team for our customer agent application.
If an application includes any red flags, our team will ask further questions and follow our Elder Abuse Guide to ensure that the loan is not unsuitable.