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 vital 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. This is 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. The law requires you to understand what you are signing and moreover understand the implications and consequences of the document you are signing or it will not recognise, and therefore enforce, your wishes.
Diagnosis of brain disease (for example, Dementia) or advanced age does not necessarily mean you are not capable of making important decisions, but in these instances the law is cautious and you will need to prove your mental capacity. 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 . A letter from your medical adviser may help, but is not necessarily adequate evidence that you understand what you are agreeing to. While this may seem highly inconvenient, the precautions are in place for your own protection. Where doubts about capacity arise, clients may be referred to the Guardianship Tribunal.
Diagnosis of brain disease (for example, Dementia) or advanced age does not necessarily mean you are not capable of making important decisions, but in these instances the law is cautious and you will need to prove your mental capacity. 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 . A letter from your medical adviser may help, but is not necessarily adequate evidence that you understand what you are agreeing to. While this may seem highly inconvenient, the precautions are in place for your own protection. Where doubts about capacity arise, clients may be referred to the Guardianship Tribunal.
Can I instruct a lawyer to draft the documents for my parent?
No. 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 the instructions to their solicitor and they should do so in private.
When does a Power of Attorney and/or Nomination of Enduring Guardian 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. Powers of Attorney operate from the time certain conditions are met - for example, a person has been assessed medically as unable to make important decisions for themselves. The person having these documents drawn up for themselves can set conditions for operation of the document and these can be simple or complex and that is why it is best to seek experienced legal advice when drawing up these documents.
Can I cancel these documents? If so, when can I cancel them?
Another important matter to note is that both Enduring Powers of Attorney and Nominations of Enduring Guardian 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 by revoking the documents. The revocation must be in writing and must be served on all previously nominated Guardians and Attorneys. This requirement is a further protection for affected individuals.
The one exception is that documents can not be validly revoked once a person does in fact lose their mental capacity or ability to communicate their wishes effectively and coherently and/or there is doubt about their mental capacity.
The one exception is that documents can not be validly revoked once a person does in fact lose their mental capacity or ability to communicate their wishes effectively and coherently and/or there is doubt about their mental capacity.
Enduring Powers of Attorney - manage your legal and financial affairs only
With this document, a person appoints certain persons, usually trusted 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 the affected person's bills, access that person's bank accounts and sell that person's property where it becomes necessary to do so, for example, to pay a Refundable Accommodation Deposit for entry into an aged care facility.
These powers conferred on others are usually 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. If you can't think of anyone who can fulfill 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 with your lawyer about your family and financial situation when obtaining that advice and therefore very important that your family does not attend the appointment with you.
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 without thought about your financial, legal, family and personal situation. Clients and their solicitors should consider the provisions of the client'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.
These powers conferred on others are usually 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. If you can't think of anyone who can fulfill 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 with your lawyer about your family and financial situation when obtaining that advice and therefore very important that your family does not attend the appointment with you.
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 without thought about your financial, legal, family and personal situation. Clients and their solicitors should consider the provisions of the client'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, then the role 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 (long-term) de facto partner or unpaid 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 document it is possible they will not. Without naming the person you wish to care for you in advanced age or in illness in a document, it is quite possible that someone else may be appointed to that role and it is also possible that, had you had a say in the matter, you might not approve of the person who ends up making your most important life decisions. It is preferable you make a written appointment of the person you do want handling your affairs and this person is called your Guardian.
Appointed Guardians make decisions about your medical treatment, accommodation and other personal affairs when you can't.
If you do not have an able spouse or (long-term) de facto partner or unpaid 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 document it is possible they will not. Without naming the person you wish to care for you in advanced age or in illness in a document, it is quite possible that someone else may be appointed to that role and it is also possible that, had you had a say in the matter, you might not approve of the person who ends up making your most important life decisions. It is preferable you make a written appointment of the person you do want handling your affairs and this person is called your Guardian.
Appointed Guardians make decisions about your medical treatment, accommodation and other personal affairs when you can't.
Advance Care Directives
Advance Care Directives are documents that:
Children who are mature enough to understand the implications of their decisions and are facing severe illness may also have an Advance Care Directive.
- Have no formal requirements (unlike Wills, Powers of Attorney and Appointments of Enduring Guardian) or standard format.
- Set out directions about your care and accommodation requirements when you can no longer care for yourself and are not able to communicate how you would like to be treated.
- Your Advance 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.
Children who are mature enough to understand the implications of their decisions and are facing severe illness may also have an Advance Care Directive.