Power of Attorney
A power of attorney gives the attorney the right to manage the legal and financial affairs of the principal. The power authorises the attorney to do anything that the principal may lawfully do – for example, buying and selling real estate or operating bank accounts – subject to any limitations set out in the power.
Limitations or conditions on the attorney may be included in the power.
In NSW, there are 2 types of powers; general power of attorney, ceases if the principal loses capacity or dies enduring power of attorney continues to have effect even after the principal loses capacity.
You may wish to appoint more than one attorney, as such your attorneys can act:
- jointly, where the decision is agreed on by majority or unanimously;
- severally, where any one of them can act on their own; or
- as an alternative, where the first appointed attorney dies, resigns or becomes incapacitated.
You can specify when your document takes effect when a medical practitioner says you no longer have the capacity to manage your affairs
Revocation and Renunciation of Power of Attorney
Unlike a will, a power of attorney does not revoke a previous appointment by the principal. If there are prior powers of attorney which are not intended to continue, they must be revoked.
A principal may revoke a power of attorney, or the appointment of a particular attorney, at any time, so long as they have the capacity to do so, by giving written notice to the attorney. Notice of the revocation should also be given to any banks or businesses with which the attorney has been dealing.
Until the attorney is notified of the revocation they can legally continue to make decisions on behalf of the principal as authorised. The principal should be able to prove when the attorney was notified if required.
An Enduring Guardianship is a legal document which allows the guardian to make medical and lifestyle decisions on your behalf, if you lose capacity.
Appointment of more than one guardian
There are many reasons why it may be desirable for the appointor to appoint more than one guardian, for example, availability, geographic location, sharing of moral responsibility for decisions. Where more than one guardian is appointed it is normally best they be appointed to act jointly and severally, however it is possible to appoint them to act jointly or severally as well.
Jointly, the guardians must make all decisions jointly. The death or resignation of a joint guardian automatically terminates the appointment of all guardians unless specified otherwise in the appointment.
Severally, the guardians can make decisions independently. The death or resignation of a joint guardian does not terminate the appointment of all guardians.
Jointly and severally, the guardians can either make decisions jointly or independently. The death or resignation of a joint guardian does not terminate the appointment of all guardians unless specified otherwise in the appointment.
Substitute guardians may be appointed, however they may only exercise the functions of the original enduring guardian after signing the acceptance of the appointment and after the original guardian has died or resigned or during the original guardian’s incapacity.
Functions of the Guardian
- Deciding where the appointor will live;
- Deciding what health care and personal services the appointor receives;
- Giving consent for medical or dental treatment;
- Any other function relating to the appointor’s person that is specified in the instrument.
Guardian’s right of access to information
In order for the guardian to make informed decisions they will require full knowledge of the appointor’s health and any other facts relevant to those decisions.
When an appointment comes into effect
Appointments are limited in effect to times when the appointor is ‘in need of a guardian’, that is, when the appointor, because of a disability, is totally or partially incapable of managing their person: s 6A When appointment has effect.
Revocation of enduring guardianship
The appointor may revoke the appointment at any time they have the capacity to do so. An appointment is revoked by the marriage of an appointor where the appointor marries a person other than the appointee after the date of appointment.
A revocation is not effective until written notice of it is given to the appointee.
When choosing a Power of Attorney or Enduring Guardian consider:
- The age of the person (must be over the legal age of 18);
- If the person is someone you trust to act in your best interests; and
- If choosing more than one guardian, are the persons able to cooperate with each other.