A power of attorney lets a person you choose deal with your money and property.
An enduring guardian makes health and lifestyle decisions for you if you lose capacity.
They are separate documents. Many people need both.
What a power of attorney does
You are called the principal. The person you appoint is your attorney.
Your attorney can act for you on property and financial matters.
This can include bank accounts, bills and property.
A power of attorney cannot be used for health or lifestyle decisions.
There are two main kinds.
- A general power of attorney. It ends if you lose capacity.
- An enduring power of attorney. It continues after you lose capacity.
Every power of attorney ends when you die. After death, your executor deals with your estate under your will.
What an enduring guardian does
You appoint a person to make personal decisions for you if you can no longer make them yourself.
These can include:
- Where you live.
- What services you receive.
- Health care, medical and dental treatment.
An enduring guardian cannot make financial decisions.
An enduring guardian cannot make or change your will.
An enduring guardian cannot consent to treatment you object to, or to certain special treatments set out in the law.
When each one starts
A general power of attorney ends if you lose capacity.
An enduring power of attorney continues after you lose capacity.
An enduring guardianship takes effect only when you are unable to make your own personal decisions.
If it is unclear whether that point has been reached, a doctor may be asked.
An enduring guardianship ends if you regain capacity or die.
Making the documents
You must have capacity when you sign.
Both your attorney and your enduring guardian must be over 18.
Your attorney accepts the role by signing the form.
Your enduring guardian accepts the role by signing the form, and that signature must be witnessed.
An enduring power of attorney and an appointment of enduring guardian each need an eligible witness.
Eligible witnesses include an Australian lawyer and a Local Court registrar by appointment.
The witness must explain the document, confirm that you appear to understand it, and watch you sign.
You can appoint more than one attorney or guardian.
They can act jointly, which means they must all agree, or jointly and severally, which means they can act together or alone.
You can also name a substitute guardian.
If you have neither document
If you lose capacity with no enduring attorney, a person may need to apply to the NSW Civil and Administrative Tribunal (NCAT) for a financial management order.
If you have no enduring guardian, your doctor may ask your person responsible to consent to treatment.
That may be your spouse or partner, an unpaid carer, or a close friend or relative.
If a guardian is needed, a person can apply to the Guardianship Division of NCAT.
Where people get caught
Signing a general power of attorney for long term planning
A general power ends if you lose capacity, which is when it is often needed most.
Expecting an attorney to make medical decisions.
Health and lifestyle decisions belong to an enduring guardian, not an attorney.
Forgetting that marriage ends an enduring guardian appointment.
Marriage revokes the appointment, unless the guardian is your new spouse.
Leaving the documents too late.
You must have capacity when you sign. Once capacity is lost, it may be too late to make them.
Choosing someone without speaking to them first.
The person must accept the role and understand what it involves.
While you have capacity, you can revoke a power of attorney by telling your attorney in writing
You should also tell your bank.
If the document was registered with NSW Land Registry Services, a revocation should also be registered there.
An enduring guardianship can be revoked in writing while you have capacity.
NCAT or the Supreme Court can also review or change these appointments.
Common questions
Can my attorney make health decisions for me?
No. A power of attorney covers money and property only. Health and lifestyle decisions are made by an enduring guardian.
Does a power of attorney continue after I die?
No. It ends on death. Your executor then deals with your estate.
Can a family member challenge how my attorney is acting?
A family member, relative or friend can apply to NCAT's Guardianship Division for a review of an enduring power of attorney.
Put both documents in place while you can still sign them. Call (02) 8062 6300.
This article is general information only. It is not legal advice for your situation.