In New South Wales a Power of Attorney is used to appoint someone to make financial decisions on your behalf such as operating your bank accounts or selling your house, whereas an Appointment of Enduring Guardian is used to appoint someone to make health and living arrangement decisions.
Who can make a Power of Attorney and Appointment of Enduring Guardian?
Anyone over the age of 18 who has the capacity to understand the nature and consequences of the document, who makes the decisions in the document of their own free will and who can communicate clearly what those decisions are.
When should I make a Power of Attorney and Appointment of Enduring Guardian?
Before you need them! These documents safeguard your interests in the event of something unforeseen – an accident or illness that robs you of your capacity to make decisions for yourself. It is better to be prepared and confident in knowing that the person you choose will be making important decisions about your money, your living arrangements and your health.
When do they start?
You can choose when you want each document to start. If you don’t make it clear, it will commence when your attorney or guardian signs the document to accept the position.
Who should I appoint to be my Attorney or Guardian?
Your need to appoint someone your trust to make the right decisions. You can appoint more than one person if you wish, and you can specify exactly how they make their decisions – jointly or separately. For a Power of Attorney, make sure that the person you appoint has the necessary skills to deal with your finances.
What are the legal responsibilities of my Attorney?
They are legally responsible to you and must act in your best interests. While you have mental capacity they must obey your instructions. They cannot give gifts to themselves or to anyone else unless you specifically authorise this and they must keep their finances and money separate from yours, keeping accurate records of all of their dealings with your money.
What are the legal responsibilities of my Guardian?
An enduring guardian can only make lifestyle decisions such as health decisions. They can decide where you live, what health care you receive, what kinds of personal services you receive and consent to medical or dental treatment on you. You should talk to your guardian about the kind of lifestyle decisions you wish them to make should you lose capacity.
Who should I talk to about it?
It is really important that you discuss these documents with a lawyer who can give you professional advice about your particular circumstances. It is also vital that you discuss your wishes with your family to avoid unnecessary conflict and stress.
Do I need a witness?
Yes, these documents need to be witnessed by a solicitor/conveyancer or a registrar of a Court and cannot be witnessed by your attorney or guardian.
Can I change my mind?
Yes, as long as you still have the decision making capacity to do so you can revoke or change these documents. This has to be done in a legally binding way, however, so please seek legal advice.
Please contact us to find out more or to arrange an appointment.