Powers of Attorney and Enduring Guardians
While no one expects to lose the capacity to manage their own affairs, many people feel comfort from knowing that they have planned ahead and made arrangements for a trusted relative or friend to make decisions on their behalf if something does happen.A first step in planning ahead involves talking to significant people in your life to communicate your wishes to them.A second step involves identifying a suitable person whom you trust to act for you.A third step is to decide whether you need to make any formal arrangements, or whether your trusted friends and family could make the decisions you would want to make, if you lose capacity yourself.You should be aware, however, that there are some situations, which require legal authority for someone to act on your behalf if you do not have the capacity yourself: for example, accessing your bank account to pay your bills, updating your investments, or in some circumstances, consenting to medical treatment.
What is a Power of Attorney
A general power of attorney is a legal document that allows you (the “principal”) to nominate one or more persons (referred to as an “attorney”) to act on your behalf. A general power of attorney gives the attorney the authority, if you choose, to manage your legal and financial affairs, including buying and selling real estate, shares and other assets for you, operating your bank accounts, and spending money on your behalf.The general power of attorney ceases if you lose your mental capacity after its execution. If you wish the power of attorney to continue if you lose mental capacity, then you use an Enduring Power of Attorney.An attorney under a general power of attorney cannot make decisions about your lifestyle or health; these decisions can only be made by a guardian (whether an enduring guardian appointed by you or a guardian appointed by the Guardianship Tribunal or the Supreme Court).You may set whatever limitations or conditions on your attorney that you choose. An attorney must always act in your best interest. If your attorney does not follow your directions, or does not act in your best interest, you should revoke the power of attorney.You or someone on your behalf should inform the attorney of the revocation, preferably in writing. The attorney must then immediately cease to act as your attorney. If anyone else, such as a bank, has been advised about the power of attorney, that person or entity should also be informed of the revocation.Michael Birch* can advise you about each of these issues and prepare your General or Enduring Power of Attorney.
What is an Enduring Guardianship
An enduring guardianship appointment is an important document. It allows someone else to make medical and lifestyle decisions on your behalf. It can even, in certain circumstances, authorise your guardian to instruct your medical team to disconnect life support systems. Michael Birch can prepare this document for you.You should get legal advice before you sign it. Michael Birch can assist you. It is important that you trust the person you appoint as your enduring guardian to make appropriate lifestyle decisions on your behalf.It is recommended you inform this person of your wishes about lifestyle decisions and involve them in discussions about your views or goals. If these change, it is important to let your enduring guardian know.An enduring guardian can only make lifestyle decisions such as health decisions. You should make an enduring power of attorney if you want someone to make financial decisions on your behalf if you lose capacity.If you appoint more than one enduring guardian, you should indicate whether the enduring guardians are to act jointly, severally or jointly and severally. Enduring guardians who are appointed jointly are only able to make decisions if they all agree about the decision. Enduring guardians who are appointed severally or jointly and severally are able to make decisions independently of each other.If you appoint an alternative enduring guardian, they will only have authority to act as your guardian if the first appointed enduring guardian dies, resigns or becomes incapacitated.
If you marry after you appoint an enduring guardian then the appointment will automatically be revoked (unless you married your enduring guardian).Your enduring guardian can resign at any time, by giving you notice in writing. If you have lost capacity to make decisions at that time then your enduring guardian can only resign with the approval of the Guardianship Tribunal.Michael Birch* can advise you about each of these issues and prepare your Enduring Guardianship.