Enduring Powers of Attorney and Enduring Guardianship Nominations
Who should have these documents?
These documents should be held by every adult, but are particularly important for the elderly and persons who are suffering from chronic or terminal illness or who have recently been diagnosed with degenerative brain disease. It is very important that these documents are drafted while you are still in relative good health and have the ability to make decisions which you understand the implications of at the time you draw up the documents because once you begin to lose your ability to make important decisions it may be very difficult, if not impossible to have these documents drawn up.
Diagnosis of brain diseasedoes not mean you are not capable of making decisions, but it does mean it is important you record your decisions while you can and as soon as possible before you do lose your capacity to make decisions. If at the time of taking instructions a solicitor has doubts about your capacity to make competent decisions for yourself, your solicitor must refuse to draw up these documents unless evidence can be provided to prove you do understand what you are agreeing to. This could involve a three-way consultation with you, your lawyer and your medical advisor which can take time and significantly add to the cost of having the documents drawn up. A letter from your medical advisor may help, but is not necessarily evidence that you understand what you are agreeing to.
Who can have these documents drawn up?
Owing to the highly personal nature of these documents, it is not possible for a family member or carer to have these documents drawn up on their instructions on behalf of a family member or person they are caring for. The person who is the subject of these documents that is the person who must give us the instructions to their solicitor. Furthermore, they must appoint the attorneys and guardians of their own independent choosing.
When do these documents begin to operate?
Some people, particularly elderly persons, prefer to have the documents operate immediately, but they do not need to operate immediately in most cases. In both these documents certain limits can be set as to when the documents will begin to be legally operative - for example, upon their doctor's recommendation or after being assessed as having lost a certain degree of mental capacity.
Can I cancel these documents? If so, when can I cancel them?
Another important matter to note is that both of these documents can be revoked (cancelled) at any time by the person to whom they relate, provided that person has the ability to understand what they are doing and the implications of what they are doing if they do revoke the documents. The revocation needs to be in writing and it is preferable it is done with the assistance of a solicitor. This is a further protection to the rights of individuals to make their own decisions. The documents can not be revoked once a person does in fact lose their mental capacity or ability to communicate their wishes in any way.
Enduring Powers of Attorney - manage your legal and financial affairs only
With this document, a person appoints certain persons, usually family members (who for the purposes of this document are referred to as attorneys), to take over their legal and financial affairs when they are not able to take charge of these matters for themselves any longer because of illness or old age. While you can set certain limits and conditions on these documents, typically they allow family members to pay a persons bills, access that person's bank accounts and sell that person's property where it becomes necessary to do so.
These powers conferred on others are substantial and for that reason, any person appointed to the role of attorney, such as a child or sibling, must be highly trustworthy and at least somewhat familiar with a person's affairs. It helps if your attorneys have experience dealing with money and legal matters, but is not necessarily vital - good common sense will usually be adequate. If you can't think of anyone who can fulfil these criteria, the NSW Guardian and Trustee can be appointed to the role.
Only solicitors, barristers, court registrars and limited categories of other legally trained professionals can sign off these documents on your behalf, and to do so, they must provide you advice about your particular situation and the advisability of your intentions. It is therefore imperative you remain honest and upfront about your family and financial situation when obtaining that advice.
It is also important that clients take a long-term view of their asset base and what it will be required to provide for in future. This means that your Enduring Power of Attorney is not drafted in isolation - clients and their solicitors should consider the provisions of the donor's Will and other important legal-financial documents - for example, superannuation funds, insurance policies and any trust documents and how these will interact with the Enduring Power of Attorney.
Appointments of Enduring Guardian - manage your healthcare,accommodation and personal services
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 naturally 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. Note that getting carer’s allowance from Centrelink does not qualify as “payment”. If you do not have an able spouse or carer who can assist you day-to-day, it is advisable to have an Appointment of Enduring Guardian drawn 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 and therefore in that situation it is preferable you make a written appointment of the person you do want handling your affairs.
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 you should also appoint a substitute guardian in case something happens to your nominee of first choice that will prevent them from being able to act for you. Your guardians and substitutes need to accept the appointment in writing and because the role comes with the responsibility of looking after the well being 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.
For more information about Appointment of Enduring Guardians click here
Advance Care Directives
Advance Care Directives are documents that have no formal requirements (unlike Wills, Powers of Attorney and Appointments of Enduring Guardian) and wherein you set out the way you would like to be treated once you can no longer care for yourself and are not able to communicate how you would like to be treated. 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.
Children who are mature enough to understand the implications of their decisions and are facing severe illness may also have an Advance Care Directive.