Just as you need a Will to protect your interests after you die, it is also in each person’s best interests to consider putting plans in place to protect you and your assets if you happen to lose the capacity to manage your own affairs.
In this respect, it is advisable to make legal arrangements to appoint someone you trust to act on your behalf if you are unable to do this yourself by way of completing both a Power of Attorney and an Enduring Guardianship.
Power of Attorney
A Power of Attorney is a legal document that sets out the name of a person or persons who you would like to take care of your financial affairs on your behalf in the event that you are unable to, such as if you were to go overseas for an extended period.
A Power of Attorney can be put in place for a set amount of time or else be cancelled/revoked in writing by you at any time, provided that you have the capacity to do so. Otherwise, a Power of Attorney ceases to operate either when you die or if you lose the ability to make your own decisions.
If you would like your Power of Attorney to continue after you lose the capacity to make decisions, then you will need to sign an Enduring Power of Attorney. Because an Enduring Power of Attorney enables you to legally appoint a person to handle your financial affairs, even if you later lose the capacity to do so yourself, this document must be made whilst you are still of sound mind.
When you appoint another person as your attorney, you are legally giving them the power to make financial decisions on your behalf such as managing your bank accounts and paying your bills. So, in the event that you lose the capacity to permanently make your own decisions in either an accident or through an acquired illness, your financial affairs can still be taken care of if you have a Power of Attorney in place. However, it cannot be used to make decisions in respect to your medical treatment or lifestyle. In this respect, you will need to have in place an Enduring Guardianship.
Any person or persons that you appoint as your attorney must be someone who you trust to look after your best interests, be over 18 years of age and they must also agree to take on the role of your attorney by accepting the appointment in writing.
A Power of Attorney must be witnessed by an Australian solicitor or barrister, the registrar of the Local Court NSW, a qualified overseas lawyer, employee of the NSW Trustee & Guardian, a private trustee company or licensed conveyancer.
An Enduring Guardianship is a legal document that you can only complete at a time when you have capacity to give a trusted person (or a number of people) the power to make personal, health and lifestyle decisions for you when you are no longer able to make these types of decisions for yourself. Such decisions include where you will live, any medical or dental treatment and health care you will receive, and who you will see or who can visit you.
The person you appoint as your enduring guardian should be someone that you absolutely trust to respect your wishes and must also be over the age of 18 years of age and have capacity.
The Enduring Guardianship only takes effect when you are no longer able to make your own personal and lifestyle decisions and this is usually at the determination of a medical practitioner.
The power of your Enduring Guardian will cease either when you die or by revocation in writing by you.
An Enduring Guardianship must be witnessed by an Australian legal practitioner, Registrar of the Local Court NSW, overseas legal practitioner or approved officer from NSW Trustee & Guardian.
The staff at Arnold Lawyers can tell you more about how a Power of Attorney or an Enduring Guardianship can be used to help ensure that both your financial and personal affairs are taken care of should you lose the ability to manage them yourself. Our staff members are efficient and experienced in preparing these documents and making sure that they are completed, signed and witnessed correctly giving you the comfort of knowing that these arrangements are in place if something does happen to you in the future.