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When you update or make your new will, you will be asked if you would like to put two additional documents in place – an Enduring Power of Attorney and an Appointment of Enduring Guardian. So what are these documents, exactly? You have probably heard of them, but you may be unsure what purpose they actually serve.

 

Enduring Power of Attorney

By creating an Enduring Power of Attorney, you confer the power to sign legal documents on your behalf onto your “Attorneys”. Your Attorneys can be anyone you trust to look after your affairs and not to abuse the legal powers you have given them. Most commonly, spouses appoint each other as Primary Attorneys. You may also appoint Alternate Attorneys in the event that your Primary Attorney may be unable to act. Common Alternate Attorneys are your children and other trusted relatives or friends.

 

But why should you give someone else the power to act on your behalf? There are a number of situations where an Enduring Power of Attorney can be utilised, for example:

 

Jenny is elderly, suffers from a serious illness and finds it difficult to leave her home. Luckily, Jenny made an Enduring Power of Attorney several years ago. Her husband, who was her Primary Attorney, has passed away, but as Alternate Attorney, Jenny’s daughter is able to operate her bank accounts (Jenny does not have internet banking!).  

 

Mike and Laura have recently retired. They are looking to downsize their current home and have had their eye on a particular property for some time. Mike and Laura are enjoying three months in Europe when their son Adam emails to tell them the property they want is on the market. Mike and Laura have an Enduring Power of Attorney in place appointing Adam as their Alternate Attorney, and have registered it with Land and Property Information NSW. As such, Adam is able to sign contracts to purchase the property on his parents’ behalf and organise the sale of their current home.

 

Steve and Amy are a de-facto couple in their thirties. Steve broke his leg in a motorcycle accident, the day before he was due to sign an important business contract. Steve has an Enduring Power of Attorney in place appointing Amy as his Primary Attorney, and Amy is able to sign on his behalf and bind Steve to the contract.

 

Appointment of Enduring Guardian    

While an Enduring Power of Attorney mainly concerns your business and financial affairs, an Appointment of Enduring Guardian covers your medical treatment, personal care and living arrangements, should you be unable to make these decisions for yourself due to a disability. By creating an Enduring Guardian, you confer these powers upon your “Guardians”. It is common for people to appoint the same people as their Guardians as they appoint as Attorneys under their Enduring Power of Attorney. However, this should be considered carefully – are the people you want to manage your money and assets also the people you want to make medical decisions for you?

 

Cecil is 87-years-old and has dementia. His wife Betty had cared for him but she has recently passed away. Cecil’s three children all lead busy lives and live in different States. Cecil has an Appointment of Enduring Guardian in place. He had named Betty as his Primary Guardian and his children as Alternate Guardians. Now that Betty has passed away, Cecil’s children are empowered to decide that it would be best for him to reside in an appropriate care facility. Cecil also had an Enduring Power of Attorney in place, and his children use their powers under this document to sell Cecil’s home and operate his bank accounts to finance his move into a nursing home. 

 

What happens if I don’t have these documents in place?

If you don’t have an Enduring Power of Attorney in place and a situation arises requiring the urgent need for the powers conferred by these documents, application must be made to a Government Tribunal. The powers will usually be granted to your next of kin, but it can take several weeks for applications to be processed. This can be particularly troublesome when you are awaiting consent to medical treatment or you have pressing financial or business issues. To put in place an Enduring Power of Attorney and an Appointment of Enduring Guardian, contact Rankin Ellison Lawyers.    

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