• Kristie Burns Krainz

Enduring Power of Attorney and Appointment of Enduring Guardian


Enduring Power of Attorney – financial & legal

A General and/or Enduring Power of Attorney is a legal document that allows you to appoint someone you trust to manage your assets and make financial decisions on your behalf if you are unable to do so yourself.

A general power of attorney allows an attorney to make decisions about your financial and legal affairs and is often used by people who want to appoint someone to look after their affairs while they are on holidays or physically unable to manage their affairs. A general Power of Attorney ceases on the earlier of the end date or if the appointor loses mental capacity to make decisions.

An Enduring Power of Attorney authorizes an attorney to act even if you lose the legal capacity to manage your own affairs. Your attorney can make decisions about your financial and legal affairs and the document remains effective if you lose capacity due to unsoundness of mind.

Decisions an attorney can make include, selling your house, operating your bank accounts, and buying or selling shares on your behalf.

You can choose when the power will commence for example immediately, when you lose your capacity to make financial and legal decisions, or on a specific date. The document may also specify how you wish your attorney to exercise their powers.

A power of attorney cannot be used to make health care and lifestyle decisions. Your attorney is legally bound to act honestly at all times and in your best interest. A power of Attorney ceases on death or can be revoked.

Appointment of Enduring Guardian

An Appointment of Enduring Guardian enables you to appoint someone you trust to make lifestyle and healthcare decisions on your behalf when you are not capable of doing this yourself. You choose which decisions you want your enduring guardian to make.

An Appointment of Enduring Guardian covers many powers, for example to decide where you live, what health care you receive, what other kinds of personal services you receive, to consent to carrying out medical or dental treatment. You may also add additional powers or limitations to this document if you wish.

It is important to note that your guardian can only make decisions if you lose the capacity to make those decisions yourself.

It is important to remember that an attorney cannot make decisions in relation to your healthcare and lifestyle and a guardian in turn cannot make financial and legal decisions.

Legal Capacity

In order for these documents to be put implemented, you must have the necessary mental capacity to legally execute them. That is, you must be able to understand the nature of a document and its effect.

If a person cannot understand the nature and consequences of a legal document or is unable to communicate in any way, they are regarded as having legal incapacity.

Once you lose mental capacity through an accident, illness or the aging process, you cannot implement any of these documents, so it is never too early to have these documents prepared.

Who should you appoint

These documents are very powerful and important documents and it is important that you appoint someone that you trust as they can be misused by the person you appoint.

It is common for a person to appoint their spouse or partner, adult child or a close friend, or someone else they trust to manage their affairs responsibly.

The person you chose to manage your financial and legal affairs can be different to the person you chose to take manage your health care and lifestyle decisions.

You should ensure the person you appoint has the necessary skills to manage your financial and legal affairs and the relevant knowledge of your personal preferences when it comes to making your health care and lifestyle decisions.

Varying and revoking powers

If you still have the required mental capacity you can revoke or vary these documents at any time and change the person you appointed.

You can limit the scope of the power of the appointment pursuant to any of these documents. You can also include directions about how they are to exercise their powers.

Registration

Each State and Territory has its own legislation regulating registrations.

In NSW, the power of attorney only needs to be registered if

your attorney will be dealing with Real Property (real estate).


If you have any questions please contact Kristie Krainz on 02 49209255 or info@burnskrainzlegal.com.au

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