Planning ahead for a time when you may not be able to make decisions for yourself is an important part of any estate plan. An Enduring Power of Attorney and Appointment of Enduring Guardian allows you to appoint someone you trust to make decisions on your behalf if you lose capacity.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney allows you to appoint someone to manage your affairs in the event you lose decision-making capacity. The document can come into effect either before or after you have lost decision-making capacity and ceases to have effect after you pass away.
In the ACT, Enduring Powers of Attorney are regulated by the Powers of Attorney Act 2006, which allows you to authorise your attorney to make decisions in relation to financial, health care, personal care and medical research matters.
In NSW, Enduring Powers of Attorney fall under the Powers of Attorney Act 2003. An Enduring Power of Attorney in NSW allows you to appoint an attorney in relation to financial and legal matters only.
What is an Appointment of Enduring Guardian?
An Appointment of Enduring Guardian is made under the Guardianship Act 1987 in NSW and allows you to nominate someone to make health and personal care decisions on your behalf if you become incapacitated. This is a separate document in NSW, but the function is incorporated within an Enduring Power of Attorney in the ACT.
Why are these documents important?
Without an Attorney or Enduring Guardian, your loved ones may need to apply to a tribunal (such as NCAT or ACAT) for authority to make decisions on your behalf if you lose capacity. This can be time-consuming, costly and emotionally draining. If no suitable person is identified, the tribunal may appoint the Public Trustee and Guardian.
Completing an Enduring Power of Attorney, and Appointment of Enduring Guardian where necessary, allows you to control who will act on your behalf if you lose capacity and can give you and your family peace of mind for the future.
Things to consider
Before completing an Enduring Power of Attorney and Appointment of Enduring Guardian, it is important to consider the following:
Appointing someone you trust – Choose someone who will act in your best interests and with whom you feel comfortable discussing your values, preferences and future wishes.
Naming a substitute decision-maker – Consider appointing an alternative Attorney or Enduring Guardian who can step in if your primary decision-maker is unwilling or unable to act, or has passed away.
Setting conditions and directions – You may wish to limit the powers of your Attorney or Enduring Guardian or include directions about how decisions should be made.
Determining when the documents take effect – Decide whether you want your Attorney to begin assisting you immediately, if, for example, you are going overseas, or only once you lose decision-making capacity.
If you would like to prepare an Enduring Power of Attorney or Appointment of Enduring Guardian, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers. We offer fixed fees for most estate planning services.