Powers of Attorney and Guardians

Unlike a will, which only operates on a person’s death, a Power of Attorney is a document which assists a person to manage their affairs whilst they are still alive, subject to specific conditions and obligations.

A Power of Attorney is a legal document in which you give one or more trusted persons (known as your attorney/s) authority to make financial decisions on your behalf when you are unable to make the decisions yourself due to accident, illness, absence, or as you otherwise direct. Financial decisions may include buying or selling assets, operating your bank accounts, or simply liaising with your service providers. For lifestyle and health decisions to be made on your behalf, an Enduring Guardianship document is required.

Attorneys are legally required to always act in your best interest and the person/s appointed should be someone you trust to safeguard your financial interests in the event of something unforeseen occurring like an accident or illness. If you appoint more than one attorney, you must specify whether or not they must both agree before making a decision (i.e., act jointly). A Power of Attorney ceases to operate when you die.

Different types of Powers of Attorney cover different circumstances and situations. Your Power of Attorney may be subject to certain limitations, for example, so it operates only for a specified period, like while you are overseas. You may also make an Enduring Power of Attorney which comes into effect if you lose capacity and continues thereafter until you die.

Knowing you have an attorney to act for you when you need it can give you peace of mind but making a Power of Attorney requires careful consideration. It is important to understand the various options available so you can make an informed decision. We can explain how the different Powers of Attorney operate and prepare documents tailored to your needs.

Appointment of Enduring Guardian

A Guardianship Document is a document which assists a person to manage their affairs whilst they are still alive, subject to specific conditions and obligations. It allows you to appoint one or more people (known as your Guardian/s) to make medical and lifestyle decisions on your behalf. It does not authorise your Guardian to make financial decisions on your behalf. If you require someone to make financial decisions on your behalf, please visit our page on Powers of Attorney.

It is important that you trust the person you appoint as your Guardian to make appropriate lifestyle decisions on your behalf. The types of decisions your Guardian can make include deciding where you live (e.g. whether in your own home or a care facility) and what kind of medical treatments you receive.

If you appoint more than one Guardian, you must specify whether they must both agree before making a decision under the Guardianship Document (i.e. act jointly) or whether you prefer them to act separately and make decisions independently of each other.

If you marry after you appoint an enduring guardian then the appointment will automatically be revoked (unless you marry your enduring guardian).

Your enduring guardian can resign at any time, by giving you notice in writing. However, if you have lost capacity to make decisions at that time then your enduring guardian can only resign with the approval of the NSW Civil and Administrative Tribunal.

As there is often an intersection between lifestyle and financial decisions, such as how to finance a move into a care facility, you may wish to concurrently put in place an Enduring Power of Attorney when appointing an Enduring Guardian. Bear in mind that you can appoint a different person/s or the same person/s to fulfill these roles.