Estate Planning Lawyers NSW

What is the difference between Power of Attorney and an Enduring Guardian?

POWER OF ATTORNEY

What is a Power of Attorney?

A Power of Attorney enables you to appoint a person (or people) to be your “attorney”.

What can my Attorney do?

Your attorney can manage your assets for you and can do anything on your behalf that you can lawfully do yourself, which could include paying bills from your bank accounts or selling your property.

Can I restrict what my Attorney can do?

In the Power of Attorney document you can stipulate when you want your attorney to act for you and if you want them to confer benefits with your assets on a third party.

What is an Enduring Power of Attorney?

The most common type of Power of Attorney is an enduring Power of Attorney. This means that if the person making the Power of Attorney (“the principal”) was to become of unsound mind, the Power of Attorney is still effective and the attorney can continue to manage the principle’s assets for them. In order for a Power of Attorney to be enduring a Certificate, which forms part of the document, must be signed by a prescribed person e.g. a Solicitor, to the effect that the principal understood the nature and effect of the document.

Can I appoint anyone as my Attorney?

The appointment of an attorney is an important decision and one not to be made lightly. It is best that an attorney be over 18 years of age and should be someone you trust implicitly. It could be for example, your spouse, children or significant person in your life.

Can I revoke my appointment of an Attorney?

Yes. You can revoke the appointment of your Attorney at any time. You should advise your attorney in writing or verbally of their appointment being revoked. Written advice is best, especially if your Power of Attorney is registered at the Land & Property Information (LPI).

Does my Power of Attorney need to be registered with any organisation?

Your Power of Attorney will need to be registered with the LPI, if your attorney has to deal with property on your behalf e.g. sell your home.

What happens to my Power of Attorney if I die?

A Power of Attorney is automatically revoked upon death.

ENDURING GUARDIAN

What is an Enduring Guardian?

An Appointment of Enduring Guardian document enables you to appoint a person (or people) as your “guardian”.

What can my Guardian do?

Your Guardian can make health and welfare decisions for you, which could include deciding where you live or consenting to medical treatment for you, but only if you were unable to make those decisions yourself.

Can I restrict what my Guardian can do?

In the Appointment of Enduring Guardian document you can direct your guardian in relation to e.g. the types of treatment you would want them to consent to if certain situations arose.

Can I appoint anyone as my Guardian?

Your guardian must be over 18 years of age and should be someone you trust implicitly. It could be for example, your spouse, children or significant person in your life.

Can I revoke my appointment of a Guardian?

Yes. You can revoke your appointment of a Guardian at any time. This revocation must be in writing and given to your Guardian.

Does my Appointment of Enduring Guardian need to be registered with any organisation?

No.

What happens to my Appointment of Guardian if I die?

An Appointment of Guardian is automatically revoked upon death.

If you wish to discuss any aspect of this information or if you need assistance with the preparation of any documents, please contact our Wills & Estates Team.


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