People are quite often confused as to why they may need to appoint both a Power of Attorney and an Enduring Guardian. There is a very important distinction in how the two function that make them both an important asset in determining how your future wishes are met.
Because the Power of Attorney and Enduring Guardian have different responsibilities, many people prefer to have the paperwork drawn up at the same time. There is nothing to say that you can’t nominate the same person for both roles.
What’s the difference between a Power of Attorney and an Enduring Guardian?
A Power of Attorney is a legal document that provides a person or trustee organisation with the ability to make decisions regarding your finances, assets and other legal matters while you are alive. It can be put in place for a predetermined amount of time or indefinitely.
An Enduring Guardian empowers a person to make lifestyle, health and medical related decisions on your behalf.
Why do I need to appoint an Enduring Guardian?
It’s a good idea to appoint an Enduring Guardian to help look after your health and wellbeing in case something happens to you that prevents you from doing this yourself. As a fit and healthy person, you may not think there is a need for it, but it can provide peace of mind. Whilst you may not need the help of an Enduring Guardian right now, it is too late to appoint an Enduring Guardian yourself if ever something happens to you that causes you to lose capacity to make decisions on your own; For instance, if you have an accident or experience a cognitive decline (ie, dementia).
If you have not appointed an Enduring Guardian and something happens to you that effects your decision making capacity, family and close friends or medical professionals can apply to the NSW Civil & Administrative Tribunal (aka ‘NCAT’) for a guardian to be appointed. The guardian appointed could be an individual, the Public Guardian or the NSW Trustee & Guardian.
What should my Enduring Guardian know about their role?
Before appointing anyone, you should have a serious talk about what your Enduring Guardian will be expected to do in their capacity, as they can incur significant penalties for failing to fulfil their role.
Decisions that Enduring Guardians can make include where you live, access to support services and general health care matters. They cannot make financial decisions.
You can provide information to help your Enduring Guardian know how they should use their authority. For example, you might direct them to seek advice from your doctor or medical specialists before they make certain decisions.
What should I consider when nominating an Enduring Guardian?
Given the nature of their powers and responsibilities, the person you appoint should be someone you can trust to make a range of decisions impacting your quality of life.
Your nominated Enduring Guardian must be over 18 years of age. They must not be providing you with medical treatment, accommodation or support services in a professional capacity at the time they are appointed.
More than one person can be nominated. If this is the case, make sure to specify whether the Enduring Guardians need to act jointly or they can act separately, and if they are to act separately is there any distinction in the responsibilities you want each nominated Guardian to fulfil.
It is very important to note that the appointment cannot be revoked once you have lost capacity.
When should I appoint an Enduring Guardian?
Contrary to popular opinion, there’s no such things as being too young. Circumstances can change at any time. As discussed earlier, many people choose to do this at the same time as implementing their Power of Attorney as part of their estate planning. Even if you never need to rely upon your Enduring Guardian (and hopefully you don’t), it’s prudent to implement one in case the need does arise.
Once I’ve appointed an Enduring Guardian, when do they start?
Enduring Guardianship only comes into effect if and when you lose capacity. Your Enduring Guardian can’t make decisions for you before that occurs.
Can I make changes or terminate it?
Provided that you have mental capacity, you can update or cancel your Enduring Guardian.
Why is a legal professional necessary when appointing an Enduring Guardian?
Seeking legal advice when appointing an Enduring Guardian is prudent because a lawyer can talk you through the process, the effect of the nomination and ensure the Enduring Guardian documents are properly prepared and executed. Importantly, their independent and impartial viewpoint combined with a full understanding of the legal implications of any decisions you make can alert you to any potential pitfalls regarding your personal situation.
They will also ensure that your wishes are clearly documented in an endeavour to prevent future issues.
If you would like to discuss appoint an Enduring Guardian, please contact me on 0402 136 083. You can also learn more about appointing a Power of Attorney.
