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Appointing a General / Enduring Power of Attorney for financial and contractual affairs
A power of attorney is a legal document by which you (the “principal”) authorise someone (your “attorney”) to make financial decisions and sign papers on your behalf where you are personally unable to do so because of sickness, mental incapacity or absence (or it can be used for convenience). An attorney cannot make medical, health or lifestyle decisions for you – an Appointment of an Enduring Guardian is used for that purpose.
You can choose when the power of attorney is to take effect. You can give the power of attorney for specific purpose or a specified time. If you are traveling overseas for a lengthy period, you may want to give someone a power of attorney to manage things while you are away. You may also wish to grant a power of attorney if your health has deteriorated.
An enduring power of attorney is one that will continue to be effective if you suffer incapacity through unsoundness of mind (as opposed to a general power of attorney which ceases to have effect if you lose capacity). An enduring power of attorney must be explained to you and witnessed by a “prescribed person” such as a solicitor, barrister or Clerk of the Local Court. Your attorney must also acknowledge acceptance of his or her appointment as attorney.
You can revoke a power of attorney at any time by signing a revocation of power of attorney and informing your attorney in writing that the power of attorney has been revoked.
A power of attorney must be registered with the Land and Property Management Authority (formerly Land & Property Information (LPI) and prior to that, the Land Titles Office (LTO)) if it will be used for dealing with land.
The Powers of Attorney Act 2003 (NSW) provides:
- There is a prescribed form for the appointment of an attorney.
- An enduring power of attorney will not commence to operate until the attorney acknowledges acceptance of the appointment.
- An attorney is prohibited from using the principal’s money for gifts or benefits to the attorney or third parties unless specifically authorised in the power of attorney.
- The Guardianship Tribunal has power to review all grants, regardless of when they were made.
We can assist you to prepare a power or attorney to allow your affairs to be handled in your absence or if you are unable to tend to them due to illness or incapacity. We can also prepare powers or attorney in the period after your death to the date on which a Grant of Probate or Letters of Administration of your estate has been obtained.
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Appointing an Enduring Guardian, setting up Living Wills and Advance Care Directives for Health, Medical and Lifestyle decisions
An enduring guardian is someone you choose to make personal or lifestyle decisions on your behalf when you are not capable of doing this for yourself. A guardian cannot make contractual or financial decisions for you – a General or Enduring power of Attorney is used for that purpose.
You can choose which decisions you want your enduring guardian to make. These are called functions. You can direct your enduring guardian on how to carry out the functions.
Who can be an enduring guardian?
The person you appoint as your enduring guardian must be at least 18 years old and someone you trust to make decisions in your best interests. The appointed enduring guardian cannot be a person who, at the time of the appointment, provides medical treatment or care to you on a professional basis or provides accommodation services or support services for daily living on a professional basis or is a relative of one of these. Most people appoint children, spouses, siblings or parents. You can appoint more than one person – jointly (acting together) or severally (individually).
What sort of decisions can an enduring guardian make?
You can give your enduring guardian as many or as few functions as you like. You can delete the functions you do not want your enduring guardian to have and add others if you wish. For example, you can give them the power to decide on your health care but not where you live. You may give your enduring guardian directions about how to exercise the decision-making functions you give them. For example, you can direct your enduring guardian to consult with a particular close friend or family member before making a decision.
The term “Living Will” is sometimes given to an appointment of an enduring guardian that contains very specific directions in relation to the care and treatment that a person wishes to receive, or the types of care that a person does not want to receive (including terminating life support and not consenting to certain types of treatment). These are also referred to as “Advance Care Directives” or “Advance Health Care Directives”.
When does it take effect?
The appointment of your enduring guardian takes effect only if you become unable to make your own personal or lifestyle decisions. Your enduring guardian must act within the principles of the Guardianship Act 1987 (NSW), in your best interests and within the law. You cannot give them a function or direction which would involve them in an unlawful act.
When does it end?
Enduring guardianship ends when you either die or when you revoke the appointment (and provided you still have the requisite mental capacity to revoke it). A joint enduring guardianship will also end if one of the guardians dies, resigns or become incapacitated unless you provide otherwise on the document creating the appointment.
What role can the Guardianship Tribunal play?
An enduring guardianship appointment is suspended if the Guardianship Tribunal makes a Guardianship Order. The Tribunal may also review or revoke an appointment if they feel that the enduring guardian is not making appropriate decisions on behalf of the person who granted it.
We can assist you to prepare an enduring power of attorney with or without advance care directives (living will) on short notice and are able to attend on you in hospital for that purpose if required.
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