Powers of Attorney & Enduring Guardian Law & Lawyers

Powers of Attorney & Enduring Guardian Law & Lawyers News

New & Further Information - Powers of Attorney Law & Lawyers

We all prefer to decide for ourselves where we live and what medical treatment and services we have. Unfortunately this is not always possible. Every day people are involved in accidents or become sick. Sometimes this can lead to them being unable to make decisions for themselves.

Under the Guardianship Act, you can appoint an enduring guardian to make decisions for you if you lose the capacity to do this for yourself.

Some frequently asked questions regarding enduring guardianships:

What is an enduring guardian?
An enduring guardian is someone you choose to make personal or lifestyle decisions on your behalf when you are not capable of doing this for yourself. You choose which decisions you want your enduring guardian to make. These are called functions. You can direct your enduring guardian on how to carry out the functions.

Who can appoint an enduring guardian?
If you are over 18 years, you can appoint one or more people to be your enduring guardian. At the time you appoint an enduring guardian, you must have the capacity to understand what you are doing.

Who can be an enduring guardian?
The person you appoint as your enduring guardian must be:

1. at least 18 years old
2. someone you trust to make decisions in your best interests.

The appointed enduring guardian cannot be a person who, at the time of appointment:

1. provides medical treatment or care to you on a professional basis; or
2. provides accommodation services or support services for daily living on a professional basis; or
3. is a relative of one of the above.

What sort of decisions can an enduring guardian make?
You can give your enduring guardian as many or as few functions as you like. You can delete the functions you do not want your enduring guardian to have and add others if you wish. For example, you can give them the power to decide on your health care but not where you live.

You may give the enduring guardian directions about how to exercise the decisionmaking functions you give them. For example, you can direct your enduring guardian to consult with a particular close friend before making a decision.

If your enduring guardian has a health care function, they will be able to see your medical records to help make decisions for you.

What decisions can't an enduring guardian make?
An enduring guardian cannot consent to anything unlawful and cannot:

• make a will for you,
• vote on your behalf,
• consent to marriage,
• manage your finances, or
• override your objections, if any, to medical treatment.

If at the time decisions are made by your enduring guardian to which you strongly object, the matter can be brought to the Guardianship Tribunal.

An application must be made to the Guardianship Tribunal to authorise medical treatment overriding your objections. Also, only the Tribunal can consent to certain 'special' medical treatments.

What principles guide an enduring guardian?
Your enduring guardian must act within the principles of the Guardianship Act, in your best interests and within the law. You cannot give your enduring guardian a function or a direction which would involve them in an unlawful act.

How many guardians can I appoint?
You can appoint one or more persons as enduring guardian. If you appoint more than one enduring guardian, you can direct them to act jointly or separately (severally).

What are joint and alternative enduring guardians?
You can appoint enduring guardians to act jointly (the enduring guardians must agree on all decisions), severally (each enduring guardian can make decisions separately from the others), or jointly and severally (the enduring guardians can act together or separately).

You can choose to have the remaining joint enduring guardian(s) continue even though one or more of the others die, resign or become incapacitated. The Appointment of Enduring Guardianship form provides an option to allow for this in Section 1c. If you do not choose this option, the enduring guardianship will end automatically when one of the joint enduring guardians dies, resigns or becomes incapacitated.

You can also appoint an alternative enduring guardian who can act only if the original enduring guardian(s) dies, resigns or becomes incapacitated.

How do I appoint an enduring guardian?

Step 1:
You need to discuss the appointment with your chosen enduring guardian and make sure they are willing to take on this responsibility if you were no longer capable of making decisions for yourself. You should discuss the functions in detail and ensure that your guardian clearly understands your wishes.

Step 2:
You may also wish to discuss the appointment with family or other significant people in your life.

Step 3:
You need to complete the attached form or a document containing the same information. The form has to be signed by:

• you or an eligible signer on your behalf
• the enduring guardian(s)
• the witness for each signature.

Who can be an eligible signer or witness?

A witness must be a NSW barrister, a NSW solicitor, a clerk of the Local Court, or an interstate legal practitioner. Every signature on the form must be witnessed. The different signatures can be witnessed by different people at different times and places. For example, your signature can be witnessed in NSW and the enduring guardian's signature can be witnessed in another state.

What should I do with the appointment?

It is a good idea to keep the appointment form in a safe place. Tell someone else where it is. Give a copy to your enduring guardian. You may wish to give copies to significant people in your life (eg your doctor).

When does it take effect?

The appointment of your enduring guardian takes effect only if you become unable to make your own personal or lifestyle decisions. Your enduring guardian may wish to seek the opinion of a medical practitioner about your capacity to make decisions before acting on your behalf.

If there is any doubt about your capacity to make decisions, a medical practitioner may have to assess your capacity.

Can I change my mind?
While you are capable of making your own decisions, you can revoke the appointment of an enduring guardian. To do this you need to complete a Revocation of Appointment of Enduring Guardian form. This form will also need to be witnessed by an eligible witness. You have to advise the enduring guardian in writing that their appointment has been revoked.

You can appoint a new person as your enduring guardian, or change the functions or directions given to your enduring guardian. You will need to complete a new form of appointment to achieve any of these things.

Only the Guardianship Tribunal can make changes to the appointment if you have lost the capacity to do this for yourself.

What happens if I get married?
If you marry after appointing an enduring guardian, the appointment is automatically revoked or cancelled. If you wish to reappoint the enduring guardian, you need to complete a new application form reappointing the person.

What if someone is worried about what my enduring guardian is doing?
Anyone with a genuine concern for your welfare can apply to the Guardianship Tribunal for a review of the appointment if they feel that your enduring guardian is not making appropriate decisions on your behalf. The Tribunal can revoke the appointment or confirm it. It may also change the functions in the appointment or make a guardianship order.

The Tribunal does not supervise enduring guardians. It will act only if it receives an application from a concerned person or receives information which leads it to review the enduring guardian appointment.

What happens if my enduring guardian cannot continue?
If the person you have appointed dies, resigns or becomes incapacitated, the Guardianship Tribunal can, in limited circumstanes, order another person to be appointed as enduring guardian on your behalf. Someone will need to lodge an application on your behalf.

When does enduring guardianship end?
Enduring guardianship ends when you die, or when you revoke the appointment. A joint enduring guardianship will also end if one of the guardians dies, resigns or becomes incapacitated unless you provide otherwise in the form. An enduring guardianship appointment is suspended if the Guardianship Tribunal makes a guardianship order. The Tribunal may revoke the appointment.

If you would like a enduring guardianship document drafted by a lawyer, if you would like legal help regarding any aspect of enduring guardianships, then please complete your free legal enquiry form to be put in contact with a lawyer experienced in preparing documents pertaining to enduring guardianships.

Powers of Attorney & Enduring Guardian Law & Lawyers Updates

What is a Power of Attorney?

A Power of Attorney is a document in which one person (the Donor) appoints another person (the Attorney) to act for him or her. There are many reasons why you might want to appoint someone else to look after your financial affairs. For example, if you are going to be out of the country for a lengthy period of time, you might want someone to do your banking while you are gone. If you are approaching old age, you may want to give a Power of Attorney to a person you trust so that he or she can manage your property for you.

What are the differences between enduring and ordinary Powers of Attorney?

There are two major types of Powers of Attorney: ordinary and enduring.

An ordinary Power of Attorney is only valid as long as the Donor is capable of acting for him or herself. If the Donor dies or becomes mentally incompetent, the Power of Attorney is invalidated.

An Enduring Power of Attorney remains valid even if the Donor later becomes mentally incompetent. (Note: the Donor must be competent at the time the Power of Attorney is made.)

In either case, the Power of Attorney becomes invalid when the Donor dies. A Power of Attorney cannot be used to bequeath property upon the death of the Donor.

What are the differences between general and specific Powers of Attorney?

A general Power of Attorney is one that gives the Attorney the authority to do anything the Donor could do him or herself. A specific Power of Attorney is one that gives the Attorney authority to act for a particular purpose. (For example: to buy or sell a particular piece of property.)

Will a Power of Attorney still be valid after the Donor dies?

NO. Generally Speaking, when a person dies, the Executor (also called a "Personal Representative") appointed in the person's Last Will and Testament takes control of the deceased person's property and distributes it according to the instructions in the Will. If there is no Will (or if the Will is invalid), each jurisdiction has intestacy legislation that distributes the deceased person's property to his or her relatives according to a set of rules. A court generally appoints an Administrator to oversee this process. Unfortunately, the deceased person's wishes are not taken into account during the process (which can be very lengthy), since they have not been formally expressed in the proper manner.

Will a Power of Attorney allow me to appoint someone to make welfare and medical decisions on my behalf?

In most of Australia, powers of attorney do not give someone the right to make decisions about your welfare or medical treatment. Usually, a medical power of attorney or anticipatory directive is required to deal with non-financial matters. The exception to this rule is found in Australian Capital Territory and Queensland. In the Australian Capital Territory you can use your Enduring Power of Attorney to appoint someone to run your everyday affairs (other than property and money) and consent to medical treatment and medical donation while you are incapacitated. In Queensland you can use your Enduring Power of Attorney to appoint someone to make personal and health decisions when your capacity is impaired.

The Donor

Who is the Donor?

The Donor is the person who needs someone else to act for him or her. The Donor must be an adult. The Donor must be capable of making his or her own decisions at the time the Power of Attorney is executed (signed).

What is "incapacity"?

A person is incapable of managing property if the person is unable to understand information relevant to making a decision about the management of property, or if the person cannot appreciate the foreseeable consequences of making (or not making) a decision about the management of property.

The Attorney

Who is the Attorney?

The person appointed by the Donor is called the Attorney. The Attorney is the person who acts for the Donor.

Does the Attorney have to be a lawyer?

No, there is no need for the Attorney to be a lawyer. (See below for Attorney qualifications.)

What qualifications does an Attorney need to have?

The Attorney must be a capable adult. The Attorney cannot be an undischarged bankrupt. The Attorney should not be the owner, operator or employee of a nursing home or extended care facility in which the Donor is a resident.

What qualities should I look for in an Attorney?

Your Attorney must be someone whom you trust completely. In addition, remember that your Attorney will have complete authority to deal with your financial and legal affairs (subject to any limitations or restrictions specified in your Power of Attorney). You should ensure that the person you choose has adequate financial management skills and sufficient time to handle your affairs properly. Your Attorney must be available when required, be able to objectively make decisions and be able to keep accurate financial records.

What are the responsibilities of my Attorney?

Your Attorney has the following responsibilities:
to act in your best interest;
to keep accurate records of dealings/transaction undertaken on your behalf;
to act for you with the utmost good faith and to avoid situations where there is a conflict of interest; and
to keep your property and money separate from their own.

Is it okay to appoint a relative as Attorney?

Yes, people often appoint relatives as Attorneys.

Can my Attorney also be a beneficiary in my will?

Yes.

What are Joint or Joint & Several Attorneys?

Sometimes a Donor will want to appoint two Attorneys. In that case the Donor must decide whether the Attorneys will be 'joint' Attorneys or 'joint and several' Attorneys. Joint Attorneys must act together. They must both agree before any action can be taken, and they must both take the same action at the same time. If one is absent, no action can be taken. Joint and several Attorneys can act together or individually. Either one can take an action without consulting the other. If one is absent, the other can still act.

Place and Time

What is "Jurisdiction"?

A jurisdiction is a place that has its own laws. It is a territory with boundaries, such as a state or a province. For example, California is a jurisdiction in the United States, Ontario is a jurisdiction in Canada, Scotland is a jurisdiction in the United Kingdom and Queensland is a jurisdiction in Australia.

What is the "Governing Law"?

A Power of Attorney is governed by the law of the jurisdiction where the actions of the Attorney will be performed. Normally, this is the place in which the property of the Donor is located. Therefore, it is not a good idea to appoint an Attorney who resides in a different jurisdiction, unless the property or assets you want the Attorney to deal with are also in the different jurisdiction. If you anticipate that your Attorney will be acting in more than one jurisdiction, you should probably make separate Powers of Attorney for each jurisdiction.


When does a Power of Attorney start?

A Power of Attorney can start on a date specified in the document, or upon the occurrence of an event (such as disability or incompetence). If there is no specified date or event, a Power of Attorney starts immediately upon execution.

NOTE: Some jurisdictions do not allow powers of attorney that start on the occurrence of an event.

How/when does a Power of Attorney end?

An ordinary Power of Attorney ends automatically when the Donor becomes mentally incapacitated or dies. An Enduring Power of Attorney ends automatically when the Donor dies. As long as you are mentally capable, you may revoke your Power of Attorney at any time by notifying your Attorney (in writing) that the Power is revoked and destroying the original Power of Attorney. Otherwise, a Power of Attorney continues in effect indefinitely, unless the document specifies an end date.

Can I revoke my Power of Attorney after I have become incompetent?

A person who is incompetent cannot revoke an Enduring Power of Attorney. However, an ordinary Power of Attorney is automatically revoked when the Donor is found to be incompetent.

How do I revoke my Power of Attorney?

You can revoke, or cancel, a Power of Attorney by giving your Attorney a written notice saying that his or her power has ended. Also, you may make a new Power of Attorney that states your previous Power of Attorney is now revoked (but you must still notify the previous Attorney of the revocation). Third parties (e.g., people or organisations that have been dealing with the Attorney) must also be notified. Additionally, if your Power of Attorney is registered you must also register the revocation.

Please note that if you fail to inform your attorney of the revocation, your Attorney can legally continue to make decisions on your behalf.

Powers

Should I put restrictions on my Attorney?

When you give a "general" Power of Attorney, you give your Attorney the authority to do anything you could do yourself, with a few exceptions - such as areas where you possess skills that your attorney doesn't (e.g. if you are a dentist, you cannot authorise your Attorney to practice dentistry on your behalf). But there may be some things you would prefer your Attorney did not do. For example, you may want to require that your Attorney get prior approval from you before signing cheques for large amounts on your account.

Should my Attorney be allowed to personally benefit from managing my assets?

If the person you are appointing as your Attorney is also a member of your family or a beneficiary in your will, you may want that person to be able to personally benefit from managing your assets, since you intend that person to become owner of the assets eventually. Generally, however, it is probably not a good idea to allow your Attorney to personally benefit from managing your assets as this creates a conflict of interest for your Attorney, who is legally obligated to act in your best interest, not his or her own best interest.

What can the Attorney do?

The Attorney may transact business respecting the Donor's property in all areas specified by the Donor.

Is the Attorney obligated to do anything?

Generally speaking, the Attorney is not obligated to act for the Donor. However, in some circumstances the Attorney may agree, in writing, to accept an obligation to take action when necessary. When the Attorney acts on behalf of the Donor, the Attorney must act in the best interest of the Donor.

Does my Attorney have the authority to act while I am still available and able to take care of my own finances?

Generally speaking, a Power of Attorney is effective as soon as it is executed (signed and witnessed, etc.) whether or not the Donor is available or able to handle his or her own affairs. However, the document might specify that it will only be effective under certain conditions. For example, some Powers of Attorney specify that they will not come into effect unless and until the Donor has become mentally incompetent to handle his or her own finances. Note: Some jurisdictions do not allow Powers of Attorney that commence upon the occurrence of a condition or event such as mental incapacity.

What specific financial or property matters may my enduring attorney deal with?

Examples of financial/property matters which your enduring attorney may deal with include:
executing a transfer of an interest in land;
renting or selling your home;
collecting income;
doing your banking;
investing your money; and
paying your bills and taxes.

What specific personal care matters may my enduring attorney deal with?

Examples of personal care matters which your enduring attorney may deal with include:
deciding where you live and who you live with;
making decisions about your daily diet and wardrobe choices;
deciding on whether you work or receive an education; and
deciding on whether you can apply for a license or permit.

What specific health care matters may my enduring attorney deal with?

Examples of health care matters which your enduring attorney may deal with include:
consenting to certain medical treatment and/or consenting to the withholding/withdrawal of medical treatment;
consenting to certain medical donations; and
making legal decisions related to your health care.

Are there any powers that I cannot authorise my attorney to do on my behalf?

You cannot authorise your attorney to make any decision that would be contrary to law. Additionally, you cannot authorize an attorney for your enduring powers of attorney to do any of the following:

Personal Matters
make or revoke the principal’s will;
make or revoke the principal’s power of attorney;
exercising the principal’s right to vote in a Commonwealth, State, Territory, or local government election or referendum;
consenting to the adoption of a child of the principal who is under 18 years; and
consent to the marriage of the principal.

Special health care matters
remove non-regenerative tissue from the principal while alive for donation to someone else;
sterilise the principal if the principal is, or is reasonably likely to be, fertile;
terminate the principal’s pregnancy;
participate in medical research or experimental health care;
treatment for mental illness;
electroconvulsive therapy or psychiatric surgery; and
prescribe health care.

Consent for special health care matters can only be provided by the Guardianship and Management of Property Tribunal.

Signing Details

What does it mean to "execute" a document?

When a person "executes" a document, he or she signs it with the proper "formalities". For example: If there is a legal requirement that the signature on the document be witnessed, the person executes the document by signing it in the presence of the required number of witnesses.

How should I sign my Power of Attorney document?

To be valid, you must sign the document with your usual cheque signing signature. You should also initial each page of the document. The signing and the initialing of the pages must occur in the presence of your notary or witness(es).

After you have signed and initialed your document in front of your notary or witness(es), your notary or witness(es) must sign on the applicable page of the Power of Attorney and should initial each page. This must occur in your presence.

Who can act as my witness?

Only one of your witnesses can be a relative. Your other witness must be a person authorised to make a statutory declaration as per the Statutory Declarations Act 1959. Your witnesses must be at least 18 years old and cannot be your attorney or a person who is signing on your behalf. You should generally avoid having witnesses that have any financial relationship with you. Your witnesses must have capacity and be mentally capable of managing their property and making their own decisions. To view who is authorized to make a statutory declaration click here.

Does it matter where the Power of Attorney document is signed and witnessed?

If your document will be used in a different jurisdiction - but not in a foreign nation - there is no problem with having the document signed and witnessed where you live, rather than where the document will be used. The witnessing requirements (number of witnesses required, whether or not notarisation is needed) should still be those of the place where the Power of Attorney will be used, however.

Can I use my Power of Attorney in a different state/territory?

Some territories and states have mutual recognition provisions in their Power of Attorney legislation which provide portability of powers within Australia. Before trying to use a power of attorney created in a different jurisdiction review the legislation of the jurisdiction where you wish to use the power of attorney to ensure that your Power of Attorney will be accepted.

What if my Power of Attorney will be used in a foreign nation?

If your document is intended to be used in a foreign nation, you may have to have it "authenticated" or "legalised". This is a process whereby a government official (e.g., the Secretary of State, the Foreign Office, the Office of the Attorney General - depending on where you live) certifies that the signature of the authority (e.g., notary or solicitor) on your document is authentic and should be accepted in the foreign nation. For more information about document authentication and legalisation, contact the local consulate/embassy of the foreign country your document will be going to, or one of the following government web sites:

United States: