Powers of Attorney & Enduring Guardian Documents

WHAT IS A POWER OF ATTORNEY?

A Power of Attorney enables you to appoint a person (or people) to be your “attorney”.

 

WHAT CAN MY ATTORNEY DO?

Your attorney can manage your assets and financial affairs for you and can do anything on your behalf that you can lawfully do yourself, which could include paying bills from your bank accounts or selling your property. A Power of Attorney only grants authority to your attorney to handle property and financial matters. It does not give someone the right to make decisions about your lifestyle, medical treatment or welfare. Lifestyle decisions are covered by Enduring Guardianship.

 

CAN I RESTRICT WHAT MY ATTORNEY CAN DO?

In the Power of Attorney document, you can stipulate when you want your attorney to act for you and if you want them to confer benefits with your assets on a third party.

 

WHAT IS AN ENDURING POWER OF ATTORNEY?

The most common type of Power of Attorney is an enduring Power of Attorney. This means that if the person making the Power of Attorney (“the principal”) was to become of unsound mind, the Power of Attorney is still effective and the attorney can continue to manage the principal’s assets for them. In order for a Power of Attorney to be enduring a Certificate, which forms part of the document, must be signed by a prescribed person e.g. a Solicitor, to the effect that the principal understood the nature and effect of the document. Clifton Legal recommend that your Power of Attorney be an Enduring Power of Attorney.

 

CAN I APPOINT ANYONE AS MY ATTORNEY?

The appointment of an attorney is an important decision and one not to be made lightly. It is best that an attorney be over 18 years of age and should be someone you trust implicitly. It could be for example, your spouse, children or significant person in your life.

 

CAN I REVOKE MY APPOINTMENT OF AN ATTORNEY?

Yes. You can revoke the appointment of your Attorney at any time. You should advise your attorney in writing or verbally of their appointment being revoked. Written advice is best, especially if your Power of Attorney is registered at the NSW Land Registry Services (LRS).

 

DOES MY POWER OF ATTORNEY NEED TO BE REGISTERED WITH ANY ORGANISATION?

Your Power of Attorney will need to be registered with the LRS, if your attorney has to deal with property on your behalf e.g. sell your home.

 

WHAT HAPPENS TO MY POWER OF ATTORNEY IF I DIE?

A Power of Attorney is automatically revoked upon death.

 

 

ENDURING GUARDIAN

 

WHAT IS AN ENDURING GUARDIAN?

An Appointment of Enduring Guardian document enables you to appoint a person (or people) as your “guardian”. Lifestyle decisions are covered by Enduring Guardianship as it allows you to legally appoint a decision-maker of your choice to make those lifestyle and health care decisions should you lose the capacity to make your own decisions. A Power of Attorney only grants authority to your attorney to handle property and financial matters. It does not give someone the right to make decisions about your lifestyle, medical treatment or welfare. Only an Enduring Guardianship can do this.

 

WHAT IS THE DIFFERENCE BETWEEN AN ENDURING GUARDIANSHIP AND A “LIVING WILL”?

You might have heard of something called a “living will”, or as they’re officially called, “advance directives”. As the name implies, this is a document in which you explain what you want to be done should you become incapacitated. However, in New South Wales, living wills are not legally binding. There is no absolute legal requirement that your doctors or your relatives must carry them out. A properly prepared Enduring Guardian document is binding and must be followed by your Guardian and your doctors or your relatives.

 

WHAT CAN MY GUARDIAN DO?

Your Guardian can make health and welfare decisions for you, which could include deciding where you live or consenting to medical treatment for you, but only if you were unable to make those decisions yourself.

 

CAN I RESTRICT WHAT MY GUARDIAN CAN DO?

In the Appointment of Enduring Guardian document you can direct your guardian in relation to e.g. the types of treatment you would want them to consent to if certain situations arose.

 

CAN I APPOINT ANYONE AS MY GUARDIAN?

Your guardian must be over 18 years of age and should be someone you trust implicitly. It could be for example, your spouse, children or significant person in your life.

 

CAN I REVOKE MY APPOINTMENT OF A GUARDIAN?

Yes. You can revoke your appointment of a Guardian at any time. This revocation must be in writing and given to your Guardian.

 

DOES MY APPOINTMENT OF ENDURING GUARDIAN NEED TO BE REGISTERED WITH ANY ORGANISATION?

No.

 

WHAT HAPPENS TO MY APPOINTMENT OF GUARDIAN IF I DIE?

An Appointment of Guardian is automatically revoked upon death.

 

Contact David Clifton or Scott Waterson if you wish to discuss your requirements in relation to Powers of Attorney or Enduring Guardianships or if you need assistance with the preparation of any documents, please contact our Wills & Estates Team.

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