There are many things that life can throw at you, some of which are good and others less enjoyable. Certainly one of the more serious matters to be faced with is the loss of capacity to make your own decisions either temporarily or permanently due to an accident or illness.
The world does not stop if anything happens to you; bills still need to be paid and vital decisions need to be made. We all know that we should plan for the future so that, should something happen, there are people that you know and trust able to assist when you’re vulnerable.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is an important legal document that authorises a person/s to make legal and financial decisions on your behalf, in the event you are unable to make those decisions yourself. This could be due to an incapacitating illness or injury.
How does an Enduring Power of Attorney work?
An Enduring Power of Attorney document allows you to appoint a person/s to act as your ‘Attorney/s’. Commonly, the Attorney is a spouse, child or close family member that you trust. Your Attorney may be required to make important decisions, so you must consider whether that person will be able to handle pressure, operate responsibly, and importantly, act in your best interests only.
The Attorney will have power to take actions such as; paying bills, signing certain legal documents, selling or purchasing assets, managing your money or accessing bank accounts. You can make specific conditions and limitations by which an Attorney will abide.
More than one (1) person can be appointed as your Attorney and you may specify whether they can act independently or together. You can also appoint an Alternate Attorney who can act in the event your first appointed Attorney is no longer able to act on your behalf.
You may also specify when the Power of Attorney is to commence, this can be immediately upon signing, upon receiving medical advice that you are unable to manage your affairs or even when the Attorney considers that you need assistance.
What will happen if I don’t have an Enduring Power of Attorney in place?
Without an Enduring Power of Attorney, no one will have the legal authority to administer or make decisions about your property and finances if you become incapacitated. For example, it could be problematic for your relatives to access your bank account in order to pay your bills. Should you need to move from your house, to move to a smaller property or to assisted living for example, only your Attorney can facilitate the sale of your property.
If you become incapacitated without an Enduring Power of Attorney, someone (such as a family member) will be required to make an application to the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court to have a financial manager appointed to act for you. This may not be the person you would have intended, and there is no guarantee that the decision that NCAT or the Court makes will be what you would have wished.
What is an Appointment of Enduring Guardian?
This document is similar to an Enduring Power of Attorney but allows you to appoint someone to make decisions in regards to healthcare, lifestyle and other medical decisions.
This document operates when you no longer have decision-making ability due to being impaired by a disability, age, mental illness or injury.
How does an Appointment of Enduring Guardian work?
An Appointment of Enduring Guardian allows you to appoint your ‘Guardian’. The Guardian is often a spouse, child or close family member that you trust.
Your Guardian has the power to; decide where you live, what health care you receive, what personal services you receive or authorise any medical procedures to take place advised by medical professionals. Your Guardian is also authorised to obtain access to your medical records. You may list conditions and limitations by which your Guardian must abide.
You may appoint more than one (1) Guardian and you may appoint Alternate Guardians should your appointed Guardian be unable to act on your behalf. Your Guardian should be someone who is fit and willing to take the role, can make decisions in difficult circumstances, understands your needs and can make choices in your best interests.
What will happen if I don’t have an Appointment of Enduring Guardian in place?
The NCAT Guardianship Tribunal is the body that, among other things, appoints Guardians to represent the interests of disabled individuals who are 16 years of age or older and unable to make their own choices.
A person will have to apply to the Guardianship Tribunal to be named your Guardian if you lose the ability to make your own decisions and do not have an Enduring Guardian in place. This may not be the person you would have intended.
Summary
An Enduring Power of Attorney and Appointment of Enduring Guardian allows you to dictate who will make decisions on your behalf if you are unable to do so. Without these documents, the people closest to you will be left in a difficult position with respect to managing your affairs.
If you have any questions or need to organise your Estate Planning please contact our team today on (02) 4626 5077.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice, Specific legal advice should always be sought separately before taking any action based on this publication.
