What is an Enduring Power of Attorney and Enduring Guardian

What is an Enduring Power of Attorney and Enduring Guardian?

It is one of those things that many people don’t really think about, a point in time when you might become unable to manage things on your own. However, this situation unfortunately does occur and unless you have the appropriate documents in place, the decision about who should manage financial and medical decisions on your behalf could be made by someone else.

Despite popular belief, your will has no effect during your lifetime. Accordingly, the executor appointed by your will has no power to deal with your financial or medical affairs if you were to become incapacitated due to injury or illness. If you would like to nominate someone to manage your financial or medical affairs during your lifetime, you will need to appoint a Power of Attorney and/or an Enduring Guardian.

A Power of Attorney allows someone to manage your financial affairs during your lifetime or for a specified period. An attorney can be appointed under either a general power of attorney, which will only apply while you are capable of giving instructions to your attorney, or enduring power of attorney, which means that the appointment will continue to apply even if you were to lose the capacity to make decisions or provide instructions to your attorney. Your attorney will be able to access your bank accounts to pay your bills, manage your finances, or even purchase or sell property on your behalf if needed.

An Enduring Guardian on the other hand authorises someone to manage your medical affairs during your lifetime. Your appointed guardian will have the ability to decide where you live, what community services you receive, be able to communicate with your treatment providers on your behalf and to consent to medical or dental treatment being carried out if you are not capable of making those decisions yourself.

These documents allow you to choose someone that you trust to make medical or financial decisions on your behalf if the worst were to happen rather than leaving that decision in someone else’s hands. It is important that you choose someone who will look after your interests rather than their own and I know a lot of people, particularly elderly people, are concerned about being taken advantage of with these documents. There are some safeguards that we can incorporate into the documents to ensure that they can only be used if you are incapacitated such as a clause requiring a medical certificate to be provided by a doctor in order for the document to be effective. Another option is to have a solicitor store the documents in their safe custody records so that they can only be accessed by the attorney/guardian once appropriate identification has been provided.

For obvious reasons, these documents are only able to be prepared when a person has the ability to understand their effect and to consent to the appointment of their chosen person. Unfortunately, I am often consulted by a concerned family member once someone is already suffering significant loss of capacity due to illnesses like Alzheimer’s or dementia and by then it is often too late to prepare these documents.  In cases like this, I often have to advise family members that their only option is to make an application for financial management or guardianship orders in the Guardianship Tribunal. While the Guardianship Tribunal may be prepared to make an order for the appointment of a financial manager or guardian if appropriate medical and supporting evidence is provided, the application process can be stressful for family members, and it can be difficult if there is disagreement within the family as to who should be appointed in these roles.

My advice is to be prepared for any situation, no matter how old or young you are. By having an Enduring Power of Attorney and Enduring Guardian in place, you can choose a person you trust to take over your medical or financial decisions if you become incapable of managing on your own. If you would like to have these documents prepared, contact KC at WNB Legal Pty Ltd on 0419 464 946.