Enduring Power of Attorney & Enduring Guardian
A Will comes into effect when you die. But what happens if you lose your mental capacity while you are alive?
Both an Enduring Power of Attorney and Enduring Guardianship deal with your personal matters in this case. Most importantly, these documents help to protect a person in different ways. So what is the difference between an Enduring Power of Attorney and an Enduring Guardian?
Here we try to explain the key distinctions between an Enduring Power of Attorney and an Enduring Guardian. If you have some knowledge you should be more equipped to make an informed decision on who to appoint.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney protects a person’s real and personal assets during their life, even if they lose capacity. With an Enduring Power of Attorney you are able to nominate someone you trust to make financial decisions on your behalf. Under the Powers of Attorney Regulation 2016, these can include operating bank accounts, paying bills, buying or selling property, managing investments or collecting rent.
If the person you have nominated is unable or unwilling to act as your attorney you have the ability, when creating tyour Power of Attorney, to nominate substitute attorneys to act for you. Your substitute attorney is only able to do so if your first choice for an attorney is not able to.
What is an Enduring Guardianship?
An Enduring Guardianship is a document that allows you to nominate a person (or people) to make medical decisions on your behalf in the instance that you cannot do so yourself. Under the Enduring Guardianship Regulation 2016, this could involve making decisions regarding the health, dental or medical treatment that you receive or if you are able enter into assisted living facilities.
It does not give your nominated person the right to make any changes to a health care directive or your Will. Much like an Enduring Power of Attorney, you are able to nominate a person to act in substitution to an initial guardian should they be unwilling or unable to act on your behalf.
The difference between An Enduring Power Of Attorney vs Guardianship
Although an Enduring Power of Attorney and an Enduring Guardian may appear similar, there is a key difference between these appointments – an Enduring Power of Attorney has the authority to make decisions over financial and legal affairs but not healthcare nor lifestyle matters. An Enduring Guardian may govern healthcare and lifestyle decisions but not those relating to finances nor legal affairs.
Whilst these very similar in that they both permit a particular person(s) to act on your behalf. The appointed person(s) may only make decisions on your behalf if and once you lose capacity to do this yourself. Typically, both legal documents are considered to be key components of your estate plan, in a similar manner as your Will.
When it comes to deciding between appointing a Power of Attorney or Enduring Guardianship, it is necessary to consider your individual circumstances and needs. Why is this so? Primarily this is because each legal document permits different types of decisions to be made.
Whilst it is up to each person to make their own decision it is usually recommended that you have both an Enduring Power of Attorney and an Enduring Guardian in place.
Do I need to appoint an Enduring Power Of Attorney and an Enduring Guardian?
In New South Wales an Enduring Power of Attorney and an Enduring Guardianship are different documents, and having one of these documents does not permit your nominated person to act outside the scope of the prescribed document. If you wish for someone to be able to manage both your finances and your health in the instance that you are unable to, both documents are required to be made and correctly executed.
It is important to understand that the people who you nominate to have power of your decisions once you lose capacity must agree to take on this role, and do so by signing the relevant document. It is important that your attorney or guardian understand your wishes so that they can act in your best interests, as well as understand what the role entails and gain independent legal advice if they so wish.
It is important to note, that at any time until you are deemed to have lost capacity, you are able to revoke either an Enduring Power of Attorney or an Enduring Guardianship. This allows you to redefine the scope of what you want your nominated people to do, or to choose new attorneys or guardians if you so wish.
Get legal support with appointing an Enduring Power of Attorney and/or Enduring Guardianship
I have experience in creating both Enduring Power of Attorney and Enduring Guardian documents so I can provide advice when you are creating these documents to ensure that they meet your needs.