Enduring Power of Attorney
An Enduring Power of Attorney gives legal authority to another person to make decisions on your behalf, in the event that you lose the ability due to accident, poor health or advanced age to make decisions for yourself. As there is no automatic regime for another person to make decisions for you if you become incapacitated, making an Enduring Power of Attorney is an investment in future certainty.
In doing so, you decide who will make decisions for you if you become incapacitated and on the terms and conditions you set. Being prepared and having an Enduring Power of Attorney also alleviates the burden for your family members or carers in obtaining legal authority, should you require assistance with managing your affairs in the future.
How can I appoint an Enduring Power of Attorney?
To be valid, an Enduring Power of Attorney must use the prescribed legal form and be signed and witnessed according to legislative requirements. As each State and Territory has its own rules and prescribed forms relating to Enduring Powers of Attorney, it is important that you use the correct document for your jurisdiction.
In the ACT, you can appoint an attorney to act for you in relation to the following matters:
- Property and Finances:g. managing your finances to pay for your living expenses, medical bills and debts; selling and buying assets on your behalf; and ensuring your tax and other financial obligations are looked after.
- Personal Care Matters:g. deciding where and with whom you live; whether you work; and your day to day needs such as diet and dress.
- Health Care Matters: g. dealing with medical practitioners on your behalf; deciding what treatment you receive; and deciding when to withdraw medical treatment.
In NSW, there are two separate, but complementary documents which enable you to appoint a person or persons to make decisions for you.
- A NSW ‘Enduring Power of Attorney’ enables you to appoint an attorney to make decisions in relation to your property and finances.
- A NSW ‘Appointment of Enduring Guardian’ enables you to appoint a guardian to make lifestyle, health and medical decisions for you when you are not able to make these decisions for yourself.
You can appoint multiple attorneys and you can specify whether those attorneys must act together or whether they may act individually. Alternatively, you can appoint one person as your primary attorney and another person as a back-up attorney in case the primary attorney is unable to act. Another option is to appoint one attorney for financial matters and a separate attorney for personal care and health care matters.
To make an Enduring Power of Attorney, you need to be over 18 and have the capacity to understand the nature and effect of making an Enduring Power of Attorney. If a person lacks the capacity to make an Enduring Power of Attorney, it may be appropriate for a family member or friend to apply for a Guardianship and/or Management Order.
How can DDCS Lawyers help?
We specialise in preparing Enduring Powers of Attorney (ACT and NSW) and Enduring Guardianship Appointments (NSW) and can also prepare the relevant prescribed forms used in other states and territories. We can provide you with advice about who should be appointed and what powers or directions should be given to the attorney. Given the significant responsibilities of an attorney, it is crucial that you appoint someone that you trust who is trustworthy, reliable and sensitive to your wishes.
DDCS Lawyers can guide you through the process of making an Enduring Power of Attorney. We will clearly explain your options, offer practical advice and ensure your Enduring Power of Attorney complies with all relevant legal requirements. We are also able to advise attorneys on their responsibilities and assist with Guardianship and Management applications.