As a lawyer, it should be stated that without the principal’s permission, obtaining a POA is not legally possible. POA is a consensual judicial act during which one person (principal) entrusts another individual to decide on their behalf. This agreement process demands consent from the principal, consciously and voluntarily. Even more so in the event of mental deficiency, if no POA were made previously by the principal, the court would appoint a guardian or conservator - this may require a higher effort and resources. The principal must be of his right mind to grant, cancel, or change a POA. However, the type of POA significantly contributes to its performance and application; it can be general or specific, requiring durability characteristics. It is better to plan and appoint a POA before their potential incapacity than later deal with the problems created by it in terms of law.
Managing Director and Attorney at Alliance Compensation & Litigation Lawyers
Answered 2 years ago
It is generally impossible to obtain power of attorney in Australia without the principal's assent. A power of attorney is a legally binding instrument that confers decision-making authority (to the attorney) on a representative (the principal). It requires the voluntary and informed consent of the principal. In certain circumstances, however, a court may appoint a conservator or administrator in the absence of a power of attorney when an individual is declared mentally incapable of making decisions. When this occurs, the court intervenes in accordance with the individual's best interests. However, this procedure differs from acquiring power of attorney without consent, underscoring the criticality of legal protections and due process in matters of this nature that are considered sensitive.
In situations where there is clear evidence of abuse or exploitation of the principal by the current power of attorney holder, it may be necessary and justifiable to transfer the power without the consent of the principal. Examples include financial abuse, where the power of attorney holder is misusing the principal's assets for personal gain, or physical abuse, where the principal's well-being is endangered. In such cases, a court may intervene and appoint a new power of attorney to protect the interests of the principal, ensuring their safety and well-being.
In cases of immediate life-threatening emergencies or imminent danger, it is possible to obtain power of attorney without the consent of the principal. This ensures prompt decision-making to protect the principal's well-being. For example, if a person is unconscious and requires immediate medical intervention, a healthcare professional may be granted temporary power of attorney to make critical medical decisions on their behalf. This exception is limited to emergency situations where time is of the essence and the principal's safety or life is at stake.
Under certain circumstances, power of attorney may be obtained without the principal's consent. In cases where the principal is mentally incapacitated and unable to make decisions, a court may appoint a guardian or conservator. This legal intervention ensures that someone responsible and trustworthy acts as the surrogate decision-maker. The court carefully assesses the principal's capacity before granting such authority, adhering to a legal process. For instance, if an elderly individual develops dementia and cannot provide informed consent, a court may appoint a family member or a professional guardian to make decisions regarding their health and finances. This process protects the rights of the principal while addressing their needs.
Where the principal objects to issuing POA, as is usually observed in normal situations, it would normally not be possible for one to get a POA without this. A key element of Power Attorney is its voluntary character that involves the deliberate consent given by principal in favour of other person, who will meaningfully be his or her agent. But sometimes an individual may be considered incompetent, and legal provisions such as guardianship or conservatorship could apply. By appointment of a guardian or conservator, whereby decisions are made on behalf the incapacitated person and any need for consent is considered overruled. Circumstances Where POA Might be Granted Without Explicit Consent: Lack of Capacity: If mental incompetence or the incapacity to make good decision is identified with respect of principal, a court may intervene and name guardian who practically becomes person one controls on how he shall operate. This situation emerges through a statutory finding of incapacity that does not rely on an individual’s express consent. Emergency Situations: In emergency situations when quick decisions are needed, while the principal is incapacitated and unable to give consent; an individual may be given legally sanctioned powers by a court for some time until things normalize. Undue Influence or Fraud: While uncommon, cases of fraud or undue influence might cause an invalid POA. If the principal was forced, misled or cajoled into affixing his signature to a document of Power of Attorney-a court may invalidate such authority. It is important to highlight that these situations are exceptions and imply legal action in order to safeguard the principal’s rights and interests. Power of Attorney in typical cases is a freely chosen and mutually agreed relationship representing the principal's confidence toward to appointed agent.
Corporate Proxy Voting I recall a corporate scenario that parallels this. During a crucial decision-making phase, I was unexpectedly unable to attend a significant shareholders' meeting. In this situation, a trusted colleague utilized a corporate proxy to vote on my behalf. This action, while not identical to a power of attorney, demonstrates a similar trust dynamic. It was a move made out of necessity, underpinning the belief that sometimes, in business, delegation of authority can occur in unexpected ways, especially when it aligns with mutual goals and trust.