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

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An Enduring Power of Attorney and an Appointment of Enduring Guardian are common estate planning documents that individuals put in place to assist them while they are alive. They allow the person making the document, referred to as the “Principal”, to appoint an Attorney and Guardian (or more than one) as well as substitutes if the Attorney or Guardian can no longer act by reason of death, incapacity or resignation.

What Does an Attorney Do?

Your Attorney is appointed under your Enduring Power of Attorney to act on your behalf to manage your legal and financial affairs. This includes buying and selling property, shares and other assets, as well as operating your bank accounts and transferring money on your behalf. When preparing your Enduring Power of Attorney, you choose when your Attorney’s appointment commences, which may be once they have accepted their appointment by signing the document or once a medical practitioner considers that you can no longer manage your affairs, for example.

An Enduring Power of Attorney will endure throughout your lifetime even if you are no longer able to manage your own affairs. This is opposed to a General Power of Attorney which becomes invalid when you can no longer manage your own affairs. An Enduring Power of Attorney is recommended as it provides greater protection.

If you wish to change your Attorney, it is important to be aware of Section 47 of the Powers of Attorney Act 2003 (NSW) which states that an Attorney who is unaware of the termination or suspension of the document, is entitled to rely on it as if it had not been terminated or suspended. Therefore, where you no longer wish for a previously appointed Attorney to act, it is essential that you serve a Revocation of Power of Attorney on them, and it is also highly recommended that you obtain written acknowledgement of the revocation from the Attorney.

What Does an Enduring Guardian Do?

Your Enduring Guardian is appointed under your Appointment of Enduring Guardian to manage health and lifestyle decisions for you. Their functions include deciding where you live, what health care you receive, personal services you receive and consenting to medical or dental treatment on you. Your Guardian’s appointment will commence only if you lose the capacity to make decisions for yourself.

Similarly to your Attorney, it is important to serve a Revocation of Appointment of Enduring Guardian should you no longer wish for your Enduring Guardian to be able to act. The form for the revocation is set out in Schedule 1 of the Guardianship Regulation 2016 (NSW).

It is recommended that everyone has an Attorney and Enduring Guardian appointed in case something happens and you are no longer able to make these decisions for yourself. You should ensure that these documents are in place well before you lose the ability to make decisions for yourself.

If you would like to make an Enduring Power of Attorney and Appointment of Enduring Guardian and discuss how they could be beneficial for you,

If you would like to make an Enduring Power of Attorney and Appointment of Enduring Guardian and discuss how they could be beneficial for you, please contact us to schedule an appointment by calling 4944 3322.

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