What is a Power of Attorney?
A Power of Attorney is a legal document that you can use to appoint someone (your attorney) to act on your behalf – that is, to be your decision-maker – in property and financial matters.
Who can make a Power of Attorney?
Anyone over 18 can make a Power of Attorney as long as they understand what they are signing (ie. if they have mental capacity).
If I make a Power of Attorney, will it affect my will?
No. A power of attorney only operates while you are alive. It is automatically cancelled when you die.
A general Power of Attorney is usually given for a specific period of time or a specific purpose (eg. if you plan to travel overseas). It stops operating if you lose the ability to make your own decisions (ie. you lose “capacity”).
In contrast, an enduring Power of Attorney will continue even after you have lost capacity. This is the one you should use if you want to give someone power to make decisions once you can no longer do so.
What if you haven’t made an enduring Power of Attorney?
If you lose capacity and haven’t made an enduring Power of Attorney there will be nobody with legal authority to manage or make decisions about your property and finances:
- Your family may have difficulty accessing your bank account to pay your bills.
- If your home needs to be sold (for example, to pay for you to move into residential aged care) only someone with your power of attorney will be able to do this.
- A relative or another person may need to apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court to have a financial manager appointed for you. This may not be the person you would have chosen.
What is an Enduring Guardian?
An enduring guardian is someone you legally appoint to make personal or lifestyle decisions for you if you can no longer make your own decisions.
You can appoint an enduring guardian to take responsibility for making decisions such as where you live, which doctor you go to, and what medical or dental treatment and other services you receive.
It is entirely different from an enduring Power of Attorney, which only authorises the person you appoint (your attorney) to make decisions about your money and property.
Who can appoint an enduring guardian?
Anyone over 18 years old can appoint an enduring guardian as long as they understand what they are signing (that is, if they have mental capacity).
What can an enduring guardian do on your behalf?
You can choose what type of decisions your guardian can make for you. These are called “functions” and you tailor what functions you give to your guardian . These might include include deciding:
- where you live.
- what health care you receive.
- what other personal services you receive (eg. meals on wheels, home care).
- to consent to medical or dental treatment for you.
You can also give your guardian directions about how to exercise the decision-making functions that you give them. For example, you can direct your guardian to consult with a family member or close friend whenever possible.