Power of Attorney vs Enduring Guardian: what is the difference? which do you need?

A power of attorney is a legal document that can be executed in order to appoint someone to look after your finances when you are, for whatever reason, unable to do so.

A lot of people are unaware of the fact that they have two options when appointing a power of attorney. A general power of attorney is an appointment of a person for a short duration of time such as where you are going away or are going to be incapacitated for a short duration of time. This type of appointment can also be used in one-off transactions. The appointment automatically terminates if and when you lose mental capacity.

The enduring power of attorney is different in that the appointment is made for long term decision making.  This type of appointment continues to operate after the principal has lost mental capacity. It is best to make the power of attorney whilst you are in good health and of sound mind as once you have lost mental capacity you will not be able to make the appointment. Making an enduring power of attorney means that there will be someone who can legally look after your legal and financial affairs if you become unable to do so in the future.

A power of attorney only authorises an attorney to act in connection with legal and financial matters and cannot be used to make medical decisions. If you want someone to make medical, treatment and other personal or lifestyle decisions for you, you should appoint an enduring guardian. What functions your guardian performs is entirely up to you. If you wish for them to only decide in relation to what care facility you will be housed at with no further functions then that is entirely up to you. You can however give your guardian broader powers if so desired.

The appointment of your enduring guardian takes effect only if you become unable to make your own personal or lifestyle decisions. If there is any doubt about your capacity to make decisions, a medical practitioner may have to assess your capacity.

An enduring guardian cannot consent to anything unlawful and cannot: 
• make a will for you, vote on your behalf, 
• consent to marriage, manage your finances (this is the function of a power of attorney) or 
• override your objections, if any, to medical treatment.

There are also further avenues in place to protect you. For instance, if your guardian is consenting to medical treatment which you are strongly objecting to, application can be made to the NSW Civil  and Administrative Tribunal on your behalf.

Whitelaw McDonald currently offer  power of attorney or enduring power of attorney, enduring guardian and your will to be done as a package deal. If you wish to find out more contact Christina Skelding or Kaela Carter on 4941 8999 today to ensure that your affairs will be taken care of in future should you ever lose capacity to deal with them yourself.