Understanding Enduring Guardianship and Enduring Power of Attorney


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enduring power of attorneyLife has a way of presenting us with the unexpected. While we can’t always see what’s around the corner there are many ways to prepare for difficult times. Enduring guardianship and enduring power of attorney are two ways you can protect yourself when things go wrong. They basically grant a person, nominated by you, the legal authority to make decisions for you should you be incapacitated in an accident or lose mental capacity through old age or illness.

The following information is a general guide and most applicable to those living in NSW. If you are from another state please check your state’s relevant sources as some rules may be different.

Enduring Guardianship

What is Enduring Guardianship?

An enduring guardian is someone you legally appoint to make decisions for you should you become unable to make those decisions for yourself. You may be unable to make those decisions for yourself due to various circumstances such as old age or accidents. An enduring guardian can consent to medical treatment and decide where you live on your behalf.

The word “enduring” indicates that the responsibility is continual, typically until death of the appointer or appointee. This is different to a standard guardianship which is usually used in cases of children and ceases when they turn 18 years of age.

Why appoint an Enduring Guardian?

An enduring guardian can save a lot of time and paperwork when things go wrong. It also ensures that the person making decisions for you is the person you want. If you do not have an enduring guardian and you were incapacitated by illness or accident then your family members would have to make those decisions. But different opinions between family members can cause conflict and disagreement and your best interests may not be looked after. In these situations your case will be taken to the NSW Civil and Administrative Tribunal to decide what is best for you. Appointing an enduring guardian beforehand can avoid delay and ensure the person making decisions for you is the person you want.

Who can be an Enduring Guardian?

Your enduring guardian must be over 18 years of age and understand the responsibility. They cannot be someone who receives payment for taking care of you (excluding Carer’s Allowance). You can nominate more than one person. Your enduring guardian should be someone you trust, who knows you well and that you can rely on to make the best decisions on your behalf.

If you do not have any close relatives or friends that you can rely on with this responsibility, NSW Trustee and Guardian is available to act as your guardian. NSW Trustee and Guardian is a government organisation with a specific role to administer guardianships, powers of attorney, wills and trusts.

When does an Enduring Guardianship start and end?

An enduring guardianship only comes into effect once you are unable to make decisions for yourself. Since you cannot appoint an enduring guardian when you are incapacitated it is important to plan ahead. You can cancel an enduring guardianship at any time whilst you still have the mental capacity to understand what you are doing.

How to appoint an Enduring Guardian

You can appoint an enduring guardian by downloading and filling out the form from the Public Guardian website. However, it is suggested that you seek legal advice prior to signing anything to ensure you and your guardian have a clear understanding of the rights and responsibilities of an enduring guardianship.

Enduring Power of Attorney

What is an Enduring Power of Attorney?

An enduring power of attorney is a legal document which allows a nominated person to make financial decisions for you after you lose capacity to make those decisions for yourself. Like an enduring guardianship, this is useful in cases of old age or accidents. A power of attorney only allows your nominated person to make decisions regarding financial matters such as using your bank account, paying bills for you and the sale and purchase of property.

Difference Between Enduring and Non-Enduring Power of Attorney

It is important to note the difference between a general power of attorney and an enduring power of attorney. A general power of attorney ceases to operate if you lose mental capacity. An enduring power of attorney continues to operate even if you lose mental capacity. A general power of attorney is useful if you have mobility issues and have trouble getting to places to manage your financial matters, or you may be overwhelmed with the burden and need someone else to help you.

Why appoint an Enduring Power of Attorney?

Having an enduring power of attorney can have the same benefits of having an enduring guardian. You get to choose who you want to handle your financial affairs if you are unable to. If you do not have an enduring power of attorney and you are incapacitated, no one has the legal authority to manage your finances. Your family members would have to apply to the NSW Civil and Administrative Tribunal to have someone appointed as your power of attorney. Planning ahead and having an enduring power of attorney can save a lot of time and confusion.

Who can be an Enduring Power of Attorney?

Your enduring power of attorney must be over 18 years of age and understand the responsibility. They cannot be someone who receives payment from you for any personal services. You can nominate more than one person. You should consider appointing someone who is capable of managing finances since your enduring power of attorney will have control of your finances when you are incapacitated. You should trust that they will be responsible with your money before appointing them.

When does an Enduring Power of Attorney start and end?

You can choose when your enduring power of attorney begins. You may want it to start immediately or you may want it to only come into effect when you lose capacity. This should be specified in your enduring power of attorney form. You can cancel an enduring power of attorney at any time whilst you still have the mental capacity to understand what you are doing. An enduring power of attorney ceases to operate upon your death or your attorney’s death.

How to appoint an Enduring Power of Attorney

Power of attorney forms can be downloaded from the NSW Land and Property Information website. It is suggested that you seek legal advice prior to appointing a power of attorney. Your lawyer can also draft a power of attorney for you or you can visit NSW Trustee and Guardian who can draft a power of attorney for you for free.

Frequently Asked Questions

Can I appoint the same person to be both Enduring Guardian and Enduring Power of Attorney?

Yes. But you should be careful as this gives a lot of power to one person with regards to your life. This person should be someone you trust strongly, who knows you well and will respect your wishes.

I have a Will. Is that enough?

A will sets out the distribution of your estate when you pass away. It does not set out who makes decisions for you when you are still alive. If you are incapacitated then an enduring guardian or enduring power of attorney can make decisions on your behalf. For example, an accident may leave you in a coma. Your will does not come into effect yet, whereas an enduring guardianship and enduring power of attorney does.

Does my Power of Attorney have to be a legal practitioner?

No. The word “attorney” is only used to describe the person acting on your behalf. They do not need any legal qualifications to be your power of attorney.

Tony Ko

Tony Ko

Online Legal Information Author at Family Law Express
Tony is currently studying law and business at the University of Western Sydney. He has a keen interest in civil liability and hopes to work in the area upon graduation.
Tony Ko
Categories: Advanced Care Directives, Dementia, Enduring Guardianship, Enduring Power of Attorney, Enduring Power of Attorney
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