Enduring Powers of Attorney and Enduring Guardianship Nominations
When you get a will drawn up, speak to your lawyer about also getting an Enduring Guardianship document and also an Enduring Power of Attorney drawn up at the same time. With the former, you elect a person or persons to make decisions about your health and lifestyle when you are no longer able to do so, and the latter is drawn up so you can elect a person or persons to deal with your money and assets when you are no longer able to. You can revoke any of these documents anytime so long as you are still capable of understanding what you are doing and the consequences of what you are doing, but not after you can no longer exercise that discretion. You can also set limitations – for example in an enduring guardianship nomination may be limited by conditions set out in an Advanced Care Directive (which is a document that is also known as “a living Will”).
It is very important that these documents are drafted while you are still in relative good health and have your wits about you. Once you lose your ability to make important decisions it is very difficult if not impossible to have these documents drawn up. Yes, even young adults should have these documents drawn up once they leave home. Though the law is beginning to recognize that there are degrees of mental incapacity, once you're going down that road you will have to undergo medical and psychological assessments first to see whether you in fact still have the capacity to make those decisions - a process which is obviously more complex, inconvenient, expensive and which offers no guarantee of getting what you need.
If you don’t have an Enduring Guardianship Nomination, your spouse or de facto partner, if you have one, is the person who is expected to step into the role of guardian, but if your spouse/ de facto is frail or unable to make important decisions for you, then the job would fall to an unpaid carer (getting carer’s allowance from Centrelink does not qualify as “payment”), or if none, a relative or a friend who puts their hand up. Although some hospitals, aged care and other care facilities may accept the decisions of an informal guardian, without this vital piece of paper it is possible they will not. It is also possible that you might not approve of the person who ends up making your most important life decisions.
As with a Will, an enduring guardian lets you appoint the person you want in charge and this is particularly important when a spouse/de facto/carer or child is not able to fill the role - for example because of their own state of mental or physical health or physical distance from you. Again you must think long and hard before making an appointment and appoint a substitute. Your guardians and substitutes need to accept the appointment and because the role comes with the responsibility of looking after the wellbeing of another, the appointment and acceptance of the appointment must be witnessed by a solicitor or other legally trained person of which the categories are limited in NSW.
Your Advanced Care Directive can also be incorporated into your Enduring Guardianship Nomination and so doing you give your guardian comprehensive directions as to what is acceptable to you or is not acceptable to you as far as quality of life is concerned and steps that you will allow your Guardian to take in particular circumstances – such as authorising your guardian to refuse you medical treatment in particular circumstances.
While I’m on the subject of Advanced Care Directives, these are not something that you need a lawyer to draft. Basically it is a document that has no formal requirements (unlike Wills etc) wherein you set out the way you would like to be treated once you can no longer care for yourself. You should have this discussion with your family and write it down. For safety’s sake sign each page and have someone independent witness each page – e.g a good neighbour. Many hospitals and care facilities have their own versions and there is no golden standard, and it is impossible to prepare for all eventualities because no one has a crystal ball, but having that discussion and writing your wishes on paper does make it so much easier for your family to know what to do when you can no longer communicate with them.
In the case of an Enduring Power of Attorney (the document that allows another to deal with your finances and assets), only a solicitor or barrister, Court Registrar, licenced conveyance of employee of the Public Trustee can witness your signature – this is to ensure you seek some legal advice first because this document has very serious financial and legal implications. It is also so that someone can check as far as possible that you are not being forced against your will into signing it and that you have the mental capacity to make your true wishes known – all very important factors for the validity of the document to be sustained. Your nominated attorney (i.e. the person who will look after your financial and related legal affairs when you no longer can) also needs to accept the appointment – preferably before you are no longer able to make a different appointment if they don’t accept the role, but unlike in the case of an Enduring Guardianship nomination, that nomination does not need to be witnessed. Note though that if the appointed guardian needs to dispose of real estate on your behalf at some later date, they will have to register the document with the Land and Property Information office in order to transfer title. As with the Enduring Guardianship Nomination, you can set conditions and directions as to how your financial affairs should be managed if you wish.