Powers of Attorney & Enduring Guardians

As part of your estate planning, it is important to consider who will step in to manage certain matters or make decisions on your behalf if you are unable to do so yourself. Preparing a power of attorney and/or appointment of enduring guardian can help in these circumstances. These documents, however, should be carefully considered and prepared by an experienced lawyer. We can explain the options available so you can make an informed decision and have documents prepared that suit your needs.

Powers of Attorney

A power of attorney is a legal document authorising somebody you trust, such as a family member or close friend, to act on your behalf with respect to certain financial and legal affairs. This person is known as your attorney. In New South Wales, there are generally two types of power of attorney – a general power of attorney and an enduring power of attorney.

A general power of attorney is useful for a limited time and purpose. They can only be used while you are still of sound legal capacity. For instance, you might sign a power of attorney if you are travelling overseas so that a family member can pay your bills while you are gone, or you might simply reach an age where you need more assistance to help with your affairs.

An enduring power of attorney, on the other hand, authorises your attorney to take care of your financial affairs if you cannot make decisions for yourself due to incapacity. While general powers of attorney cease to have effect if the principal loses capacity, enduring powers of attorney continue to be valid in such circumstances.

An attorney has a duty to only make decisions that are in your interests, and they must avoid benefiting themselves. The appointment of an attorney, however, is open to abuse so you should make the selection carefully and independently, away from the influence of everyone else, and especially not because of pressure from the proposed attorney. Our lawyers can advise you on the type of power of attorney that is best suited to your needs and ensure that all the legal formalities are completed.

Enduring Guardianships

An appointment of enduring guardian is a legal document that enables you (as principal) to appoint a person (the guardian) to make certain lifestyle and health decisions on your behalf if you are no longer able to make those decisions yourself due to incapacity. These decisions may relate to healthcare, accommodation, and certain other personal matters. The enduring guardian must act in your best interests and according to your known wishes.

When appointing an enduring guardian, it is important for you to consider the scope of authority and responsibilities you want your guardian to have and to ensure this is clearly documented. You should also discuss your wishes and values with your guardian.

To appoint an enduring guardian, you must be 18 years and over and have decision-making capacity. The person you appoint must be willing to take on the role, understand your needs, wishes and beliefs, and should be able to make difficult emotional decisions. You can revoke an enduring guardianship at any time as long as you have capacity.

We provide preliminary advice regarding Guardianship Tribunal procedures and applications including applications for Financial Management and Guardianship.

If you need assistance, contact [email protected] or call 02 9601 4311 for expert legal advice.