enduring powers of attorney and enduring guardianships
Enduring powers of attorney and enduring guardians are important in planning for your in future and ensuring that your affairs and you interests will be looked after.
Different regulations exist in each State and Territory for enduring guardians and powers of attorney. The information in this paper is based upon the laws in New South Wales under the Guardianship Act 1987 and the Powers of Attorney Act 2003 .
Enduring guardians
An enduring guardian is someone you choose to make personal and lifestyle decisions on you behalf, such as where you will live or what health care you will receive, if you are not capable of making these decisions yourself.
You choose what decisions your enduring guardian can make. These powers are called ‘functions'. You can nominate as many or as few functions for you enduring guardian, and can change them if you wish.
Enduring guardians cannot consent to anything unlawful and cannot:
- make a will for you;
- vote on your behalf;
- consent to marriage;
- manage your finances;
- override you objections, if any, to medical treatment.
If someone there is concern about the decisions that your enduring guardian is making, the Guardianship Tribunal can review the appointment. The Guardianship Tribunal may revoke or confirm the appointment. If the Guardianship Tribunal makes a guardianship order, the enduring guardianship will be suspended. The Supreme Court can also review an appointment.
You can appoint more than one enduring guardian. If you appoint more than one, you may direct them to act:
- Jointly – where each enduring guardian must agree before a decision is made;
- Severally – where each enduring guardian can make decisions separately from the other; or
- Jointly and severally – where the enduring guardians can make decisions together or separately.
If you have appointed more than one enduring guardian and directed that they act jointly, the enduring guardianship will end if one of the guardians dies, resigns or cannot carry out their duties.
You can revoke or cancel an enduring guardianship whenever you choose. If you do not choose to do this, the enduring guardianship will end when you die.
Click here to do a Enduring Guardianship online
Enduring power of attorney
An enduring power of attorney is someone you appoint to make financial decisions on your behalf if you lose the mental capacity to do so yourself. For example, an enduring power of attorney can operate your bank accounts, pay your bills, and sell or buy property on your behalf.
You can place limits on these powers. For example, you can give your enduring power of attorney authority to pay you bills and meet your day to day financial needs but not to sell your property. Enduring powers of attorney cannot make lifestyle and medical decisions for you. This is the role of an enduring guardian.
The attorney must act in your best interests and:
- avoid any conflicts of interest and not give any gifts to themselves or anyone else using your finances unless instructed to;
- keep their finances separate from yours;
- keep accurate and proper records of their dealing with your finances and property;
- obey your instructions while you have the mental capacity to provide them; and
- act within any limits placed on the attorney.
Like enduring guardianships, the Guardianship Tribunal has the power to review an enduring power of attorney it if is in the best interest of the person who made the attorney. It can vary or revoke the enduring power of attorney, and can require the attorney provide audits and accounts. The Supreme Court may also review an enduring power of attorney.
You can appoint more than one enduring power of attorney and choose that they act jointly, severally, or jointly and severally. If you appoint your attorneys to act jointly and severally, the enduring power of attorney will continue even when one of the attorneys can no longer act. However, if you appoint them to act jointly and one can no longer act, the enduring power of attorney will automatically end.
Enduring powers of attorney are different from general powers of attorney in that a general power of attorney ceases to have effect after you lose your mental capacity to make your own financial decisions. An enduring power of attorney will continue to have effect if this happens.
Click here to do a Power of Attorney on line
Planning ahead
Appointing an enduring power of attorneys and enduring guardianship are important decisions that safeguard your future. Both are important positions of trusts and you need to ensure that you appoint someone you are confident can manage your financial affairs and make lifestyle decisions that are in your best interests.
Enduring powers of attorney and enduring guardianships are legal documents. You should see a lawyer to ensure that your enduring attorney and guardian are properly appointed and provide have only the powers you wish them to have.
