General Power of Attorney –
- only valid while the principal has legal capacity;
- useful if a person is going away for an extended period and does not want the authority to continue should they lose legal capacity; and
- usually drawn up for a specific purpose with specific or general powers.
Enduring Power of Attorney (EPA) –
- continues to be valid even if a person loses legal capacity due to disability or illness;
- may empower the attorney to make financial and property decisions;
- may be activated when required or upon loss of legal capacity; and
- allows the attorney to commence or to continue to manage a person’s affairs even though they have become unable to give lawful instructions.
A Power of Attorney can be tailored to meet specific needs. Limitations can be inserted, restricting the power by time (how long it is to operate), by reference to a particular transaction (e.g. a sale or purchase) or to particular acts (e.g. signing on bank accounts).
In the absence of a duly appointed Attorney, should you become unable to manage your legal or financial affairs it may be necessary for a Government Tribunal to appoint a Trustee to make decisions for you.
If the Power of Attorney is to be used for dealings with land then the Power of Attorney must be registered at the NSW Land Registry Services. We can attend to this on your behalf.
A Power of Attorney cannot be used by the attorney to make health and lifestyle decisions on behalf of the principal. If you want these types of decisions covered, then you should appoint an enduring guardian.
Contact us to arrange an appointment.
The enduring guardian can be the same person or persons appointed under the Power of Attorney but need not be as they are two separate appointments. When appointing more than one enduring guardian, it is important to choose people who can co-operate with each other and work together in your best interests.
Enduring guardians may be appointed to act:
- jointly and severally (the enduring guardians can make decisions together or separately).
- severally (any one of the enduring guardians can make decisions independently of the other), or
- jointly (the enduring guardians must agree on all decisions.
It is also possible to appoint an alternate enduring guardian to act if the original appointed enduring guardian dies or is unable to act.
The appointment of the enduring guardian takes effect only if you become unable to make your own personal or lifestyle decisions. The enduring guardian may wish to seek the opinion of a medical practitioner about a person’s capacity to make decisions before acting on their behalf.
An individual is able to chose which decisions they want their enduring guardian to make. These are called functions and include the power to decide where you live, what health care you receive and to consent to the carrying out of medical or dental treatment. Directions may also be given about how to exercise the decision making functions given to an enduring guardian. For example they can be instructed to consult with a particular friend or doctor before making a decision.
An enduring guardian cannot consent to anything unlawful and cannot:
- vote on a person’s behalf,
- consent to marriage,
- override objections, if any, to medical treatment.
An enduring guardian appointment can incorporate wishes for future health and personal care, including the care and medical treatment to be administered in certain specified critical situations such as terminal illness or being kept alive by machines. Including the advance care directive in the enduring guardianship appointment has the benefit of not burdening loved ones with such decisions. An additional benefit is that your wishes can be discussed openly with your loved ones, as they will need to sign the enduring guardianship appointment and by doing so, accept their appointment and acknowledge your wishes.
The advance care directive can be tailored to set out your moral or religious principals or beliefs which may impact the health choices you specify.
After the form is completed there is no requirement to formally lodge it anywhere. However it is a good idea for a copy to be given to the appointed enduring guardian(s) and the original to be held by us in safe custody on your behalf.
Contact us to arrange an appointment.
