Power of Attorney and Enduring Guardianship

Power of Attorney A Power of Attorney is a document that appoints someone you trust to be your attorney.

You can limit the Power of Attorney to a particular situation, eg giving your attorney the power to sell a specific property. Alternatively, you can make it general, giving your attorney the power to do anything you can legally do, eg sign cheques, pay bills, cancel phone contracts, buy and sell real estate or shares, operate bank accounts, sue someone, sign nursing home contracts, and make business and financial decisions for you.

The Power of Attorney can be drafted to start immediately or on the happening of a specific event. It does not give your attorney the power to make gifts or to benefit the attorney unless you say it can.

If it is drafted as an “Enduring” Power of Attorney then it will continue to apply even if you later suffer from mental incapacity.

It doesn’t need to be registered unless your attorney is intending to sell land.

I can advise you on the best type of Power of Attorney for you and who you may want to appoint as your attorney.

Enduring Guardianship

In NSW, the Enduring Guardianship is a separate document to the Power of Attorney. In ACT and QLD it is a combined document.

Under the Enduring Guardianship you appoint someone you trust to make health, personal and lifestyle decisions for you, eg where you live, what medical treatment or health services you receive. Property and financial matters are covered by the Power of Attorney, and you would usually appoint the same person as both your attorney and guardian.

It only applies if and when you can’t make those decisions for yourself, eg you’re unconscious or suffer from dementia.

It terminates on your death or if you marry or remarry.

Advance Health Care Directive

Ideally, the set of documents you should have are a (1) Will, (2) Enduring Power of Attorney, (3) Enduring Guardianship, and (4) Advance Health Care Directive.

The Advance Health Care Directive (“the Directive”) is a very useful document. It is sometimes known as a "living Will". In QLD it is a statutory document. It is not regulated by statute law in NSW or ACT, but if made correctly is still legally enforceable.

The Directive acknowledges your legal right to give directions to your health care professional (including your doctor, nursing staff, ambulance officers and paramedics) about what medical treatment you want or don’t want in order to relieve your pain or suffering. It is not about the notion of "right to die" or a request for euthanasia. It is about the right of a capable adult to control his or her own body and refuse medical treatment, even if it hastens death.

It only applies if you can’t communicate your wishes at the relevant time, eg you are unconscious or suffer from dementia or are in extreme pain.

The Directive is limited to medical treatment, whereas the Enduring Guardianship covers wider health and personal matters. The advantage of having a Directive is that it informs your health care professional and guardian what decision you have made about specific treatment. Under the Enduring Guardianship your guardian is left to make that decision.