A lot of people have heard of an enduring power of attorney and an enduring guardian but in my experience, most don’t really understand what they are, or that they are in fact, two separate things.
Well, what are they exactly?
An enduring power of attorney is the document used for you to appoint someone else to legally deal with your money, bank accounts and other assets in the event you become unable to manage your affairs by yourself. The person you appoint is known as your attorney.
An enduring power of attorney is a long-term appointment and it continues to operate if you lose mental capacity though, for example, having a stroke, car accident, dementia etc.
Appointing an attorney does not mean you lose your legal rights to operate your own finances, you can still continue to look after your own money and property while you are still able, unless you choose otherwise. When you have your enduring power of attorney drafted you can choose when it commences operation. This can be when it is signed by the person or person’s appointed as the attorney, when the attorney thinks it’s necessary to start looking after your affairs or, when a medical practitioner provides a certificate stating that you can no longer manage your affairs on your own.
You can appoint more than one attorney and have them act together or together and separately if you choose but it is vitally important to remember that you should only appoint a person or persons that you trust.
An Enduring Guardian is the document that is used to appoint a person to make decisions about your medical/dental treatment and your lifestyle in the event that you lose the mental capacity to make those decisions for yourself. The person is known as your guardian and you can appoint more than one.
Unlike an enduring power of attorney, where you chose when the power actually commences, an enduring guardian does NOT commence operation until such times as you are unable to make decisions for yourself.
Why is it so important to have BOTH of these documents?
It is important to have both of these documents for a number of reasons but the most important of these is that if you do not have a power of attorney and enduring guardian and you become unable to manage your own affairs, the NSW Civil and Administrative Tribunal may have to appoint someone to take over this role for you. This will involve a hearing before the Tribunal where evidence is given as to whether a financial manager and guardian needs to be appointed and if so, who is the best person to make these decisions or you. The person they appoint may not be the one you would have chosen. If the Tribunal does not believe there is someone amongst your friends and family that is suitable and willing to make these decisions, they will appoint the NSW Trustee and Guardian to make those decisions for you.
It has also become somewhat common practice for nursing homes and aged care facilities to not accept a resident unless they have a legally appointed an attorney and a guardian.
Why can’t my spouse automatically make these decisions for me?
You spouse may be able to make some decisions on your behalf without being appointed your attorney and/or guardian but they cannot sign documents for you without it. If for example, you became incapacitated and it was necessary to sell the family home to move to a smaller residence, or closer to family and the house is in both your names, someone has to have the authority to sign on your behalf. If both you and your spouse have appointed each other, then your spouse will be able to use the Enduring Power of Attorney, to sign in your place.
If you would like more information or would like to make an appointment to discuss having a Enduring Power of Attorney and Enduring Guardian prepared, please CONTACT US for an appointment.
Disclaimer: The contents of this article do not constitute legal advice and should not be used as such. Formal legal advice should always be sought in these matters. If you would like to discuss this or any other matter please CONTACT US for an appointment.