Planning for the future involves making important decisions about who will manage your affairs if you’re unable to do so. Whether due to illness, accident, or age-related conditions, having the right legal documents in place provides peace of mind. Working with Conrad Curry estate lawyers in Newcastle can help ensure your wishes are properly documented and legally binding.
Table of Contents
Key Takeaways
What is a Power of Attorney?
A Power of Attorney is a legal document that allows you (the principal) to appoint someone (the attorney) to make financial and legal decisions on your behalf. This powerful tool enables your chosen representative to manage your finances and property according to your instructions.
Definition and Primary Purposes
There are two main types of Powers of Attorney in Australia. A General Power of Attorney is typically used for specific periods or transactions and ceases if you lose capacity. An Enduring Power of Attorney continues even if you become unable to make decisions yourself, which makes it particularly valuable for future planning.
Common Types of Powers
The powers granted can include:
Legal Effect and Timing
You can specify when your Power of Attorney takes effect – immediately upon signing, or only if you lose capacity. You can also include conditions or limitations on the attorney’s powers. Your attorney must always act in your best interests and keep proper records of transactions.
What is an Enduring Guardian?
While a Power of Attorney covers financial matters, an Enduring Guardian makes personal, lifestyle and healthcare decisions when you’re unable to do so yourself.
Definition and Decision Areas Covered
An Enduring Guardian can make decisions about:
How an Enduring Guardian Differs from a Financial Attorney
The key difference is the scope of decision-making. An attorney manages financial and legal matters, while a guardian makes personal and healthcare decisions. These roles can be filled by the same person or different people, depending on your circumstances and preferences.
“Having both a Power of Attorney and Enduring Guardian in place provides comprehensive protection for your financial matters and personal wellbeing should you lose capacity to make your own decisions.” – Conrad Curry
When the Appointment Applies and Decision Limits
An Enduring Guardian’s authority only begins when you lose capacity to make your own decisions. They cannot override your wishes while you’re capable, and they cannot make certain decisions like voting, marriage, or will-making on your behalf.
Choosing the Right Person
Selecting appropriate people for these important roles requires careful consideration of their qualities and circumstances.
Qualities and Practical Considerations
Look for someone who is:
Eligibility and Exclusions
Generally, your attorney or guardian must be:
Public Trustees and Guardians can be appointed if suitable private individuals aren’t available.
Multiple Appointees, Joint Appointments and Substitutes
You can appoint multiple attorneys or guardians to act:
You can also nominate substitute appointees if your first choice becomes unable or unwilling to act.
Step-by-Step: Appointing a Power of Attorney
Creating a legally valid Power of Attorney requires attention to detail and adherence to state-specific requirements.
Check State and Territory Rules
Each Australian state has its own forms and requirements. Obtain the correct form from your state’s government website or through a legal professional.
Complete Required Information
Fill in all details carefully, including:
Signing and Witnessing Rules
Most states require signatures to be witnessed by specific people, such as a solicitor, barrister, or Justice of the Peace. Your attorney must also sign to accept their appointment.
Registration When Required
In some states like Tasmania and the Northern Territory, registration is mandatory. In others, registration may be required for certain transactions, particularly those involving real estate.
Step-by-Step: Appointing an Enduring Guardian
The process for appointing an Enduring Guardian follows similar principles but uses different forms.
Obtain the Correct Form
Each state has specific Enduring Guardian forms available through government websites, legal professionals, or Public Guardian offices.
Consent, Signing and Witness Requirements
Both you and your guardian(s) must sign the document. Witnesses typically must be legal professionals who can certify that you understand the nature and effect of the appointment.
Notifying Relevant Parties
While not always legally required, it’s helpful to provide copies to your GP, specialists, and family members who should be aware of your arrangements.
State and Territory Variations
Australian jurisdictions have different terminology, forms and requirements for these appointments.
New South Wales (NSW)
NSW uses separate forms for Powers of Attorney and Appointment of Enduring Guardian. Enduring Guardian appointments must be witnessed by a lawyer, barrister, or NSW Trustee and Guardian officer.
Victoria (VIC)
Victoria uses an Enduring Power of Attorney form that can cover both financial and personal matters, allowing you to appoint an attorney for financial matters and a guardian for personal decisions in one document.
Revocation, Variation and Oversight
These appointments aren’t permanent and can be changed while you have capacity.
How to Revoke or Change an Appointment
To revoke an appointment, you must complete a revocation form while you still have capacity. Notify your attorney/guardian and any organisations they’ve dealt with on your behalf.
Effect of Incapacity and Death
Both appointments automatically end when you die. A general Power of Attorney ends if you lose capacity, while an Enduring Power of Attorney and Enduring Guardian continue.
Common Pitfalls and Practical Tips
Avoid these common mistakes when creating your documents:
Incomplete Forms and Incorrect Witnessing
Missing information or improper witnessing can invalidate your documents. Follow instructions carefully and consider legal assistance.
Appointing People with Conflicts of Interest
Choose someone who will act solely in your best interests, without conflicts from their own financial or personal concerns.
FAQs
Q. Can I Appoint More Than One Attorney or Guardian?
Yes, you can appoint multiple people to act jointly (all must agree) or severally (any can act independently), or a combination of both.
Q. Can an Attorney Make Gifts or Sell Property?
This depends on the powers you grant and state laws. Generally, attorneys can only make gifts that you would reasonably be expected to make, such as birthday or holiday gifts to family members.
Q. Will Banks Accept an Enduring Power of Attorney Without Registration?
Most Australian banks will accept a properly executed Enduring Power of Attorney without registration, but they may have additional requirements like certified copies or completion of their own forms.
Taking the Next Step
Appointing a Power of Attorney and Enduring Guardian are vital steps in protecting your future. Begin by obtaining the correct forms for your state, carefully selecting trustworthy appointees, and ensuring proper execution of the documents. For personalised advice tailored to your specific situation, Conrad Curry can provide expert guidance through this process, helping you create legally sound documents that truly reflect your wishes and provide proper protection for your future.
