Enduring Power of Attorney and Enduring Guardianship – Information

Future Planning & Estate Planning

None of us like to think that we may in the future lose our mental capacity. If you do not have a valid and Enduring Power of Attorney or Enduring Guardianship then your spouse or family members will have to make application to the Guardianship Board for financial or personal welfare orders . Generally, without a valid and enduring Power of Attorney and Enduring Guardianship, the Guardianship Board will make orders to act for your affairs which may be contrary to your spouse’s or family’s wishes. A valid and enduring Power of Attorney and Enduring Guardianship document is a precautionary safety measure put in place in case you are unable to make decisions for your financial or personal and lifestyle affairs in the future.  You will need to discuss this with your spouse, family members or close trusted friends to ensure they would be happy to conduct your financial affairs if you are unable to do so.

What is an Enduring Power of Attorney?

An  ‘Enduring Power of Attorney’ is a document you can sign to appoint another person (called your attorney) to act for you in relation to your financial affairs. The document states what the attorney is authorised to do. This can be quite narrow and specific, or as general as you wish. Any lawful action taken by the attorney under the enduring power of attorney is binding on you, so it is important to appoint someone you can trust. Note an Enduring Power of Attorney does not give the attorney power to make decisions about where you live, what health/dental care your will receive or any other lifestyle decision. A Power of Attorney only relates to your financial affairs. When the power of attorney is signed, the document can be given to the attorney, or you can hold onto it until the need arises. When it is provided to your attorney, it can be used to prove that he or she is authorised to act on your behalf. Even though you have appointed an attorney, you can still personally carry out any transactions, such as banking and the sale of property, while you retain the ability to do so.

How long does an Enduring Power of Attorney Last?

A Power of Attorney continues as long as you want it to, and it can be revoked, or cancelled at any time while you have the capacity to make the decision. It can also last for a set period of time, for example while you are ill or while you are overseas. An enduring Power of Attorney ceases to operate when you die and an enduring power of attorney continues to be effective if you later suffer a mental incapacity.

When can an Enduring Power of Attorney be given?

An Enduring Power of Attorney must be made when you are of sound mind. It is too late to appoint an attorney after you have lost the capacity to manage your own affairs. You can make Enduring Power of Attorney arrangements that come into effect immediately, or that remain ‘dormant’, and only come into effect in particular circumstances. For example, you could decide to complete an Enduring Power of Attorney that becomes active only when you are unable to manage financial matters for yourself.

Who can I appoint as my attorney?

The person you appoint should be someone you trust. He or she must be 18 years or over. Your attorney must sign the Enduring Power of Attorney form to show that he or she consents to act, so before filling in the form you need to ask the person you choose as your attorney if they agree to be appointed. The attorney can sign the form at the same time as you or at a later time, but it will not start to operate until he or she signs it.

Can an attorney look after my real estate interests?

If you want your attorney to be able to sell or deal with real estate on your behalf, the power of attorney must be registered with the Department of Lands. It is also a good idea to register the power of attorney if you want your attorney to be able to sell or deal with shares on your behalf, as some brokers or companies may require this, even though the law does not.

Can an attorney use my money for gifts?

The current form on which a power of attorney is made requires you to decide the powers you want your attorney to have to use your money for the attorney’s benefit, for the benefit of other people or to make gifts. An attorney cannot give away your money or property unless the power of attorney form specifically allows the attorney to do so. As with gifts, an attorney cannot use your money for his or her own benefit, or the benefit of any other person, unless the power of attorney form specifically allows the attorney to do so.

What Is Enduring Guardianship?

An Enduring Guardianship document is appointing a person, at a time when you have capacity, to make personal, health or lifestyle decisions on your behalf should you lose the capacity to make them for yourself.

This document will only come into effect if you lose capacity to make these decisions for yourself.

What does the enduring guardian do under the Enduring Guardianship?

The general functions of an enduring guardian under an Enduring Guardianship document are to make decisions about:

  • Where you live;
  • What medical and dental treatment you will receive
  • What personal services you will receive
  • What healthcare you will receive

You can include other functions if you require. For most people, the standard functions are sufficient. Remember the guardian appointed can only act to make these decisions for you if you no longer have capacity to make these decisions. You can also include in your Appointment of Enduring Guardian an Advance Directive in which you can confirm your future wishes as to organ donation, resuscitation or not taking heroic means to prolong life if your are suffering a terminal condition. If you require an Advance Directive you should discuss this in detail with your attending health providers and your family first. Your enduring guardian must act within the principles of the Guardianship Act, in your best interests and within the law. You cannot give your guardian a function or a direction that would involve them in an unlawful act, such as euthanasia.

Why would I need have an Enduring Guardianship document prepared?

The NSW Guardianship Act gives power to your spouse and/or family members to make these decisions on your behalf without having to appoint an Enduring Guardian in an Enduring Guardianship document. However, there are many instances where you should have an Enduring Guardianship document such as:

  • You may not agree with decisions that could be made by your family members
  • You do not have family living close by
  • You are concerned that your spouse may die before you or lose mental capacity

Preparing an Enduring Guardianship document is a precautionary safety measure to ensure lifestyle decisions are made by people you would want to make decisions for you.

Can I appoint more than one guardian ?

You can appoint more than one enduring guardian if you wish. You can also decide whether you want to appoint the guardians to act together only or either of them to make decisions on your behalf. You can also appoint an alternate guardian in the event that the first appointed guardian dies before you, loses their capacity before you or is unwilling to act.

How long does the appointment of enduring guardian last?

The Appointment of Enduring Guardianship lasts until you revoke it while you still have capacity.

How does my enduring guardian accept their appointment?

Your enduring guardian(s) must accept their appointment by witnessing the Enduring Guardianship document before a prescribed person such as a solicitor or magistrate.

What is an Advance Care Directive?

An Advance Care Directive is a document which can be included in your Enduring Guardianship document that describes your wishes, particularly, if you do not want your life prolonged in an end stage terminal disease situation.

We can help make sure your decisions are clear-

  • An Enduring Power of Attorney or Appointment of Enduring Guardian can be used to arrange your financial and personal affairs should you lose the ability to manage them yourself;
  • Upon obtaining your instructions we will prepare and thoroughly explain the documents and their function and arrange the necessary signatures and certificates.

Fees for Enduring Powers of Attorney & Enduring Guardianship

Call Us (02) 43884410 or email us at rozdavis@absolutelegal.com.au to discuss your Power of Attorney and Enduring Guardianship requirements.