Why should I appoint an Enduring Power of Attorney and Enduring Guardian?
Along with making a Will, the appointment of an Enduring Power of Attorney and Enduring Guardian is a very important part of any Estate Plan. These appointments allow you to nominate a person, or persons, to make important decisions on your behalf in the event that you lose capacity. As any person may sustain a brain illness or injury at any time, it is strongly advised that you make these appointments while you can for your own peace of mind that those decisions will be made by persons that you know and trust. It is a common misconception that these documents are only for the elderly. It is recommended that anyone over the age of 18 years (that has the mental capacity to do so) considers putting these documents in place.
Once you have lost capacity, it is too late to appoint an Enduring Power of Attorney and/or Enduring Guardian. If you have not appointed anyone in these roles, and you lose capacity, the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) may appoint someone to act on your behalf. This may be a natural person or a government body such as the Public Guardian or the NSW Trustee & Guardian.
What is the difference between an Enduring Power of Attorney and Enduring Guardian?
The main distinction between an Enduring Power of Attorney and Enduring Guardian is regarding the matters about which they are permitted to make decisions in the event that you lose capacity.
The appointment of an Enduring Power of Attorney formally gives another person, or persons, the authority to manage your legal and financial affairs. Depending on what you direct, this may include buying and selling assets, operating your bank accounts, and spending money on your behalf.
The appointment of an Enduring Guardian gives another person, or persons, the authority to make lifestyle and medical decisions on your behalf. These decisions may, for example, concern your place of residence, access to medical care and providing consent for the refusal of medical treatment.
Who can I appoint?
You can appoint one or more persons over the age of 18 years to be your Enduring Power of Attorney and/or Enduring Guardian. For Enduring Guardians, an additional eligibility restriction applies: the person(s) or a close relative of theirs must not be providing medical treatment, accommodation or support services to you on a professional basis at the time that you make the appointment.
The person(s) must accept the appointment and can only make decisions in your best interests. It is important that you are confident in the ability of the person(s) that you appoint to exercise their powers, as you cannot revoke the appointment once you lose capacity.
Contact our Estate Planning Team today for advice regarding the appointment of an Enduring Power of Attorney and Enduring Guardian.