By Jasmine Cario and Nicholas Kyriakoudes

What is a Power of attorney?

A power of attorney is a legal document that gives another person (or more than one person), called your attorney/s, the authority to make decisions over your legal and financial affairs during your lifetime.

The powers granted to your attorney/s may commence immediately, upon the happening of a certain event such as if you lose capacity (for example through dementia), or for a specific period of time such as if you are travelling.

Under the Power of Attorney Act 2003 (NSW), once appointed as an attorney, the attorney can legally do anything you could otherwise do yourself in relation to financial and legal matters. This includes opening and closing bank accounts, withdrawing and depositing funds, paying your bills, taking out insurance policies and acquiring or selling assets such as property.

You can add additional powers or include limitations in your Power of Attorney that your attorney will be legally bound by. You may also choose to allow your attorney to provide certain gifts and benefits to selected people. An attorney cannot simply dispose of your assets in any way they please as they have a duty to act in your best interest. See also (https://hansonslawyers.com.au/taking-a-benefit-in-my-role-as-someones-attorney/).

What type of power of attorney should I execute?

There are two types of powers of attorney that can be executed for an individual, being:

  1. A General power of attorney – A general power of attorney only operates when you have capacity. If you lose capacity (through dementia, an accident, a stoke etc), this power of attorney terminates, and the attorney can no longer exercise any of the powers conferred on them.
  2. An Enduring power of attorney: this type of Power of Attorney remains operatable if you lose capacity and will remain in force until your death.

Why do I need a Power of Attorney?

Executing a Power of Attorney provides security and a contingency plan just in case you cannot manage your financial and legal matters yourself.

By executing a Power of Attorney, you choose who can make financial and legal decisions for you if you cannot make decisions or manage your affairs yourself. You may also stipulate the powers and limitations you want your attorney to have.

If you lose capacity before putting a Power of Attorney in place, your family will be unable to access or deal with your assets and may be required to apply to the NSW Civil and Administrative Tribunal to have a Financial Management Order put in place. These applications can be time consuming and stressful on your loved ones. If a Financial Management Order is put in place, you do not get to choose your attorney and the tribunal may select someone to act on your behalf that you would not have otherwise chosen yourself.

Who should I appoint?

You should appoint someone you trust as your attorney.

You may choose to appoint more than one attorney and may nominate substitute attorneys who act when your first choice cannot act such as if they themselves are incapacitated or do not want to act. If you do choose to appoint one or more attorney, you can choose if they are to act jointly – where the attorneys must all act together and agree on a decision, or severally – where the attorneys can act separately (by themselves) without consulting the other appointed attorneys.

What is an enduring guardian?

An enduring guardian is a legal document where you are able to appoint another person or other people to make lifestyle decisions for you and who are able to consent to medical treatment on your behalf. A Guardian can only act for you if you lose capacity and cannot make those decisions for yourself.

Why should I execute an enduring guardian?

Like a power of attorney, there is no legal obligation for a person to appoint an enduring guardian. The choice is personal and there is no specific time to make an appointment. However, if you do not have an Enduring Guardian in place, and you lose capacity, your loved ones may have to apply to the NSW Civil and Administrative Tribunal to have a Guardianship Order made.

Again, if the Tribunal process is necessary, you will not have a say on who is able to make medical and lifestyle decisions for you. Therefore, it is best for you to put an Enduring Guardian in place as soon as possible just in case you suddenly lose capacity as a result of an accident or unexpected medical episode.

Whilst we hope you never lose capacity, by executing an Enduring Guardian, you decide who makes decisions for you if you cannot make those decisions yourself and the document will alleviate the stress on your loved ones who may otherwise be required to apply to a tribunal for orders allowing them to make lifestyle and medical decisions for you.

You may appoint more than one enduring guardian or appoint someone to act for you first and a substitute. The appointment of more than one guardian may be joint or several.

What can my enduring guardian do?

Enduring guardians have the authority to make lifestyle and medical decisions for you if you can no longer make those decisions for yourself. Your guardians can decide where you live, what health care you receive, what kinds of personal services you receive and they can to consent to the carrying out of medical and dental treatment for you. You may specify any additional functions or limitations you wish.

Again, you should appoint someone that you trust to be your enduring guardian.

Advance Care Directive

An Advance Care Directive sets out a binding direction to your Guardians for the refusal of resuscitation measures and/or medical treatment in certain circumstances -even if by following your direction, the actions may lead to your death. Compliance with and Advance Care Directive is lawful and binding upon your Guardians.

For example, you may wish for all medical treatment performed on you to be stopped if you become terminally ill from an incurable disease or an irreversible illness, if you are deemed to be permanently unconscious or in a persistent vegetative state, or if you are so seriously ill and unlikely to recover without the use of life support measures.

We understand these matters can be quite difficult to discuss and at times very confronting, however, these are important matters which should be considered by all adults. At Hansons Lawyers, we aim to work with you to structure your Will, Power of Attorney, Enduring Guardian and Advanced Care Directive in ways that best fulfil your wishes and account for contingencies to ensure your documents last well into the future.

If you would like to execute a power of attorney and enduring guardianship, please contact us on 42 222 666 or by email at hansons@hansonslawyers.com.au