Most people are familiar with Wills and the role of the Executor in administering their estate. However, you may not be as familiar with the concept of an Enduring Power of Attorney. An Enduring Power of Attorney provides for a time when you are unable to make important decisions about your finances due to illness, an accident or absence.
You can appoint an attorney to make financial decisions for you if you become unable to make these decisions for yourself due to injury or illness. Your attorney should be someone you can count on to do things like manage your banking, pay bills, and sell your home. Most people choose to appoint their spouse or a close family member to this role.
In this section, we'll gather all of the information we need to set up a legally binding Enduring Power of Attorney.
An Enduring Power of Attorney is a legal document in which you appoint at least one person to act and make important decisions on your behalf if you are unable to do so due to illness, an accident or absence.
Your attorney or attorneys do not need to be lawyers.
They need to be a person or people you trust to look after your assets and financial affairs. However, they will not necessarily be responsible for decisions concerning your medical treatment. You will need to make a separate appointment to cover that, which we will address shortly.
Enduring Power Of Attorney
That decision is yours to make. However, your lawyer will want to discuss this with you in person, to ensure you understand the advantages of an Enduring Power of Attorney. We have added this to your our list for further discussion.
Substitute Power Of Attorney
The substitute attorneys will only have authority to act as your attorney if the primary attorney dies, resigns or vacates their position. We usually recommend that our clients appoint substitute financial attorneys.
Appointing substitute attorneys is a good idea. They function as a backup in case your primary attorney is no longer able or willing to act. You should trust them just as much as your first choice.
Okay. It is a really good idea to appoint one or more substitute attorneys, so we have added this to our list of things to discuss with a lawyer. Ultimately though, it is up to you.
Appointment Mode
If they are appointed 'jointly' then they need to do everything together, including signing all documents together, and they need to agree on a decision before they can do anything about it.
If they are appointed 'jointly and severally' that means that they can act individually if they like. This allows more flexibility, so that if one of your attorneys is away or unavailable, the others are still able to act. However, if they do choose to make a decision together, it must be unanimous.
If it is important to you that nothing happens without their joint agreement, you should appoint them 'jointly'. if you trust them to each look after some aspects of your affairs and want to make it a bit easier for them to do so, you should appoint them 'jointly and severally'.
Commencement
The default position is that your Enduring Power of Attorney for financial matters will commence immediately. That means that your attorney could start acting for you as soon as the document is finalised, including managing your bank accounts or selling your house on your behalf. It does not mean you lose your right to operate your bank account, deal with real estate or exercise any rights that you have. It means that from now, either you or your attorney could do any of those things. This might be convenient if your attorney is someone you trust to act on your behalf in any financial matter.
If you are in reasonable health and planning for the future, you may not want your Enduring Power of Attorney to come into effect until a medical practitioner declares that you are unable to manage your affairs. That may be more appropriate if your attorney is not someone you would ordinarily expect to act on your behalf in this way.
We rarely recommend that the power comes in on a specific date unless there is some good reason.
Enduring Guardian
Now we will turn our mind to appointing an Enduring Guardian who will be responsible for making important lifestyle and medical choices on your behalf if you become unable to make these decisions for yourself due to injury or illness. An Enduring Guardian and an Enduring Power of Attorney are complementary documents. Many people appoint the same person as both their attorney and guardian.
Unlike attorneys, if you appoint more than one Enduring Guardian, they will be required to make decisions together. Keep this in mind when you're considering your options and be careful to choose people who can work together if you do decide you'd like to appoint more than one.
Substitute Enduring Guardian
Okay. It is a really good idea to have a substitute guardian named, so we have added this to our list of things to discuss with a lawyer. Ultimately though, it is up to you.
Appointing a substitute guardian is a good idea. They function as a backup in case one of your primary attorneys is no longer able or willing to act. You should trust them just as much as your first choice.
Death of Guardian
Guardian decision making powers
Conditions and limitations on personal attorney/enduring guardian
That confirms you've done the right thing by seeking an expert's advice. It is really important to consult a lawyer before placing restrictions or conditions on your Enduring Guardian. We will work with you to ensure that they are still able to act as you would want them to. Can you let us know what you're thinking?
You can limit your Enduring guardian's power so that they're only permitted to decide certain matters, for example you may not want them to decide where you live. However, you may also provide a general direction like "If I need to move into residential care, I want to live in a facility located near my home."
You may wish to nominate certain physicians you would prefer to have consulted, or medical procedures that you do not wish to undergo. Again, it is very important that you discuss any conditions of this nature with your lawyer, as they may have the effect of limiting your personal attorney/Enduring Guardian's power to act in your best interest.
