Powers of Attorney & Enduring Guardianship

Powers of Attorney and Enduring Guardianship documents are important parts of your estate plan. They assist by ensuring your legal, financial and health affairs can be dealt with appropriately by somebody you trust if you are away, become ill, or incapacitated.

Powers of Attorney

A Power of Attorney is a legal document made by a person (the principal) which appoints another person (the attorney) to manage the principal’s legal and financial affairs if / when a specified event occurs and subject to certain conditions. More than one attorney may be appointed.

A Power of Attorney is useful if you are planning to go overseas, taking an extended holiday, suffer from poor health, have an accident, or reach a stage in your life when you need greater assistance with managing your affairs.

A Power of Attorney gives considerable power to another person, who is essentially authorised to ‘stand in your shoes’. Your attorney can pay your bills, do your banking, and even enter into legal agreements on your behalf. It is essential that you choose somebody you trust explicitly, with the capacity and willingness to make sound decisions that are in your best interests.

Not all Powers of Attorney are the same

General Powers of Attorney cease to operate if the principal loses capacity to make decisions and are usually put in place for convenience or one-off situations. For example, a person might appoint an attorney to look after their financial and legal affairs in Australia while they travel overseas.

Alternatively, an Enduring Power of Attorney, as the name suggests, endures, or continues after capacity is lost by the principal. Unlike a general Power of Attorney, an Enduring Power of Attorney must be explained to you by a prescribed witness, that is, a lawyer.

A general Power of Attorney can be revoked (cancelled) at any time by the principal. If revoking a Power of Attorney you should state your intention in writing and provide a copy to all attorneys. It is also important to notify banks, building societies or other places where the power of attorney has been used.

An enduring Power of Attorney cannot be revoked once the principal loses capacity.

Powers of Attorney or Enduring Powers of Attorney are void when the principal dies.

Enduring Guardianship

An enduring guardian can make lifestyle, health and medical decisions on your behalf if you lack the capacity to make those decisions yourself. A guardian acts as a substitute decision-maker and can consent to your future medical and dental treatment and accommodation arrangements. The appointment also authorises health care professionals to share your information with your guardian.

It is common for spouses or partners to appoint each other and / or their adult children, although this need not be the case. When appointing a guardian, you should consider that he or she may need to make confronting decisions in challenging and emotional circumstances and it is important that your guardians understand your values, morals and wishes.

If you appoint more than one guardian, you may appoint them jointly or jointly and severally. Appointing guardians jointly means that both or all guardians must agree on the decisions made on your behalf. By appointing your guardians severally, you authorise each of them to make decisions separately.

Your appointment can include specific directions about your future treatment for example that you continue receiving services from a certain health care provider. You may also include the type of treatment you are willing to accept or refuse, for example you can state that if you are seriously ill with no chance of recovery, you do not wish to be subjected to treatment unlikely to meaningfully prolong your life.

You may not instruct your guardian to exercise any illegal functions, such as euthanasia.

The person making the appointment must have mental capacity to do so. Where a person lacks capacity and there is no pre-existing appointment the law will provide for a ‘person responsible’ to authorise medical and dental treatment. A person responsible includes a parent, if the person is a child, or if the person is an adult, the guardian or spouse, person with care of the person, or close friend or relative.

Powers of Attorney and Appointments of Enduring Guardian are key components in your overall estate plan. They provide direction in the event of the unforeseen or inevitable and make the process for you and those dealing with misfortune and crisis a little less uncertain.

Our estate planning lawyers will guide you through the preparation of these important documents to ensure that they reflect your intentions and that you understand their nature and effect.

If you need any assistance contact one of our lawyers at [email protected] or call (02) 9708 2222 for a no-obligation discussion and for expert legal advice.