Understanding Powers of Attorney and Enduring Guardianship

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:

1. 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.  

2. 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.

3. 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.

4. 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.

Should I appoint an Enduring Power of Attorney?

An Enduring Power of Attorney allows you to choose who can make decisions on your behalf in the event you lose capacity.

What is the difference between an Enduring Power of Attorney and a General Power of Attorney?

An Enduring Power of Attorney is a legal document that appoints a person (or multiple people) to make decisions on your behalf if you become a person with impaired decision-making capacity. An Enduring Power of Attorney is an important aspect of any estate plan.

A General Power of Attorney is a document that operates while you have decision-making capacity and appoints someone to act on your behalf in relation to financial matters if for example, you are overseas or unable to do so. A General Power of Attorney ends if you lose decision-making capacity.

What is impaired decision-making capacity?

The Powers of Attorney Act 2006 (ACT) provides that a person has impaired decision-making capacity if they cannot make decisions in relation to their affairs or do not understand the nature and effect of their decisions. In some circumstances, an independent medical assessment is required to determine whether someone has decision-making capacity.

What powers does my Enduring Power of Attorney have?

In the ACT, you can appoint an Enduring Power of Attorney to make decisions about the following:

1. Property matters – this includes managing your finances by paying bills and outgoings, accessing bank accounts, and buying, selling, and investing assets on your behalf.

2. Personal care matters – this includes decisions about where you live, whether you work or study and your daily care needs such as dress and diet.

3. Health care matters – this includes consenting to and withdrawing medical treatment.

4. Medical research matters – this includes consenting to your participation in approved medical research or low-risk research.

You can specify in your Enduring Power of Attorney which powers you wish for your attorney to have and give directions and limitations about the exercise of their powers.

Your attorney must agree to act as your attorney by signing an acceptance on your Enduring Power of Attorney document. Your Enduring Power of Attorney will only be effective in relation to attorneys who have accepted their appointment by signing the document.

We offer fixed fees and package deals in relation to Wills and Enduring Powers of Attorney. If you would like to discuss your situation and how we can assist you, please contact us today at (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis