Power of Attorney or Enduring Guardianship – what’s the difference? Why do people get confused?
You don’t have to be old to have these documents in place. In fact, life has been challenging in recent times with COVID Pandemic which has affected both the old or young unpredictably. However, if you are ageing, we definitely recommend you have these documents prepared for you.
What is a Power of Attorney?
There are two main types of power of attorney:
a general power of attorney ends when you lose the capacity to make your own decisions
an enduring power of attorney continues even after you lose the capacity to make your own decisions.
Usually, a general Power of Attorney is used when you cannot be present to sign legal documents for a specific decision – i.e. buying or selling houses in different jurisdictions and is revoked upon the purchase or sale of the property.
An Enduring Power of Attorney authorises someone to make legal and financial decisions for you on your behalf when you’re not able to yourself.
This could be because you may have lost the capacity to do so due to a serious illness, injury or because you are travelling. The Power of Attorney can be for a specific decision such as buying, selling property or in general; to deal with a variety of decisions.
The legal document that outlines and authorises someone to manage your legal and financial affairs on your behalf is an Enduring Power of Attorney. You are called the Principal, and the person you appoint to act on your behalf is called your Attorney.
The requirements for a valid Enduring Power of Attorney are that it:
must be witnessed by a lawyer or court registrar
should be prepared in advance while you have capacity to do so
stops having an effect when you die.
Typical actions an attorney might take include:
paying your bills and outgoings
signing legal documents
selling or purchasing assets (property, shares etc)
managing your money
accessing bank accounts
dealing with your personal belongings
You can specify any specific conditions that the attorney must abide by or can limit the powers your attorney may have to do things.
What is an Enduring Guardianship?
An Enduring Guardianship is a document authorising someone to make lifestyle, health and medical decisions for you.
It allows your nominated person or people to make lifestyle, health and medical decisions for you if you do not have the capacity to make them for yourself.
This could be if you become ill or injured and are unable to make such decisions for yourself.
An Enduring Guardian can influence or decide:
where you live
what health and personal services you receive
the medical treatment you get
The person you appoint as your Attorney should be someone you trust and who understands the importance of their responsibilities.
You can give directions to your Enduring Guardian about how you want them to perform their role, include details of what is important to you, such as your values, life goals and outline the treatment and care you would like or would refuse if you are in the later stages of a terminal illness, funeral/spiritual rites, or organ donation etc
An example of a direction you may want to give could be that they seek advice from your doctor or medical specialists before making certain decisions.
What happens if you do not have a Power of Attorney or Enduring Guardianship
If you do not have a Power of Attorney or Enduring Guardianship in place and you lose capacity, your family will not be able to make those decisions on your behalf. They will have to apply to the Guardianship and Administration Tribunal for a guardian to be appointed. This is often an expensive process and can be unnecessary stressful situation. To avoid causing your loved ones pain, its best to have a document executed while you still can.
Safekeeping your legal documents
Safekeeping your legal documents so that it can be accessed easily when needed is important. You can give a copy of it to your Attorney and/or your Lawyer.
Feel free to ring us today on 02 9261 1954 or email us at voice@voicelawyers.com to get your Wills, Power of Attorney & Enduring Guardianship organised for your peace of mind.