When completing a Will, your legal adviser needs to consider whether an appropriate Enduring Power of Attorney and Guardianship document should be included in your estate arrangements.

Whether you are single, married, de facto, or have a young family, maybe you are approaching retirement, or elderly and retired, whatever your stage of life, there are so many important reasons to have a Will, Enduring Power of Attorney and Guardianship document professionally prepared.

The Need For A Power Of Attorney Or Enduring Guardianship

Most people may have a will, or at least recognise its importance, however a Will only has effect when you have passed away.

An Enduring Power of Attorney and Enduring Guardianship are sometimes misunderstood documents. These documents allow for you to appoint someone who can manage your financial and lifestyle affairs while you are alive.

Not many people expect to be unable to handle their own affairs however this can easily occur during one’s lifetime for various unexpected reasons, such as serious accident or health issues.

For this reason, many people feel comfort knowing that they have planned ahead and have the right legal documents in place just in case something does happen to them.

Planning ahead involves picking a suitable person whom you trust to act as your attorney or guardian and talking to them to communicate your wishes for the future. The final stage is making a formal arrangement by drawing up the formal Enduring Power of Attorney or Enduring Guardian to give effect to your wishes.

You need to consider whether you make formal arrangements in anticipation of the need and whether your trusted friends and family could make the decisions you would want to make if you lose capacity yourself or are unable to attend to matters personally due to travel or illness.

For instance, you will require formal arrangements for someone to act on your behalf if you lose capacity to access your bank accounts to pay bills

Power of Attorney and Enduring Power of Attorney

A Power of Attorney is a legal document in which you appoint the person of your choice to manage your assets and financial affairs while you are alive.

In some circumstances, a Power of Attorney is used when you are travelling overseas and want to give your attorney access to your bank accounts to pay your bills or manage your finances or complete a property transaction.

Usually, an Enduring Power of Attorney is in place to protect you should you become unwell and are no longer able to manage your own financial affairs. This ensures it is effective after capacity to make decisions is lost.

Making a Power of Attorney does not mean that you will lose control over your financial affairs while you have the capacity. It simply gives your attorney formal authority to manage your financial affairs according to your instructions. Your Power of Attorney can be revoked at any time provided you have the capacity to do so.

A Power of Attorney only deals with property and financial matters, and enables your attorney to sign legally binding documents on your behalf. It does not give someone the right to make decisions about your lifestyle, medical treatment or welfare. An Enduring Guardianship covers these decisions.

It needs to be understood that a Power of Attorney ceases when you die, and the executor named in your Will will take over the responsibility of administering your estate.

In order to make a valid Power of Attorney, you must be 18 years or over and have sufficient capacity to understand the nature and effect of the appointment. This means that at the time of making your Power of Attorney you understand:

• The authority your Power of Attorney will have and what sort of decisions they will be empowered to make;
• When and how your attorney will have the authority to exercise their power;
• The effect that your attorney’s actions could have on you, and;
• What options are open to you to cancel or change your attorney’s appointment in the future.

What can happen if I do Not Have a Power of Attorney?

Should you no longer be able to manage your financial affairs and you do not have an Enduring Power of Attorney, the Guardianship Tribunal may be requested to appoint a financial manager to make these decisions for you.

This involves a formal hearing where evidence will be heard to assess if you have lost legal capacity.

If the Guardianship Tribunal decides that you need someone to make decisions about your finances and legal affairs, they will appoint a financial manager.

The person or organisation appointed as your financial manager will not necessarily be one whom you would have chosen. This may be stressful for your family. By making an Enduring Power of Attorney, you are ensuring that the person or organisation you nominate to manage your financial affairs is there to look after you if ever the need should arise.

What is an Enduring Guardian?

A Guardian is someone you appoint under an Enduring Guardian. The appointment needs to occur when you have the capacity, and gives your Guardian the power to make personal, health or lifestyle decisions on your behalf should you lose the capacity to make them for yourself or be unable to make these decisions.

You can appoint more than one enduring guardian if you wish, and you can choose which decision-making powers you want your enduring guardian to have.

You could give your enduring guardian as many or as few powers as you like. For example, you can authorise your enduring guardian to decide such things as where you may need to live or what medical treatment you should receive.

Your enduring guardian must act within the principles of the Guardianship Act, which requires them to act in your best interests and within the law. You cannot give your guardian a direction that would involve them in an unlawful act, such as euthanasia.

How can the team at Taylor and Scott Help You?

Our expert lawyers can:

• Discuss the implications of your intentions when you pass away and provide you with advice regarding your Estate Planning, competently draft your Will in accordance with your instructions.
• Work with your Financial Advisor to ensure such matters as tax are effectively minimised.
• Tell you more about how a power of attorney or the appointment of an enduring guardian can be used to help organise your financial and personal affairs should you lose the ability to manage them yourself;
• Prepare and explain the documents for the power of attorney and appointment of enduring guardian, and arrange the necessary signatures and certificates.

Taylor & Scott Lawyers can guide you through your options and explain in plain language the processes involved in nominating an Attorney under a Power of Attorney (this is someone who can make legal decisions on your behalf eg: if you become incapacitated).

Appointing an Attorney can be a difficult process and it is vital this process is explained to you in a clear and unambiguous manner.

Taylor & Scott can ensure the procedure of appointing a Power of Attorney is made carefully and sensitively and that you feel in control during this decision-making process.

We can also advise individuals who have been nominated as an Attorney under a Power of Attorney on their obligations and duties when making financial and legal decisions on behalf of someone who is unable to make their own decisions. We are also able to advise a Guardian under Enduring Guardianship of their obligations.

If you would like to discuss your Will, Probate, Estate Planning or Contested Estate with one of our solicitors, please do not hesitate to contact our office on 1800 600 664, or send a message by completing the contact form.

At Taylor & Scott, We Care For You.