Kydon Segal Lawyers


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

A power of attorney is the appointment of a person or persons (your Attorney) with legal authority to look after your financial affairs. A power of attorney ceases to have any legal effect if the person making the appointment loses their mental capacity.

An enduring power of attorney is the same as a power of attorney except that it continues to be effective even after you lose mental capacity eg you suffer from a serious illness or accident and are legally unable to make decisions for yourself.

Some of the reasons people consider using a Power of Attorney include that they:

  • Are either to elderly and frail or too busy to attend to the day to day demands of financial paperwork and record keeping and wish to delegate that task to their attorney
  • Are going overseas or interstate and are therefore unable to deal with their affairs while they are away

An example of an action that your Attorney might take is to operate your bank account or buy and sell property on your behalf.

The appointment of a power of attorney is a serious matter so it is important to ensure that that the person you choose is someone you trust will do what is in your best interest such as a spouse, family member or close friend.  In any power of attorney, you are able to restrict what the appointed person is able to do in relation to your property or finances.

An enduring guardian is the appointment of a person or persons (your Enduring Guardian) to make lifestyle, health and medical decisions for you when you are not capable of doing this for yourself. Your Enduring Guardian may make decisions such as where you live and what medical treatment you receive.
An example of an action that your Enduring Guardian might take is to consent to a medical procedure being performed on you or arranging for your admission into an aged care facility.

Why is it a good idea to appoint an Enduring Attorney and an Enduring Guardian?

Both an enduring power of attorney and an enduring guardian appointment are good life plan tools for the future and for unforseen situations that often confront people. They are complementary documents and can be made separately or together giving you the choice as to who you want to have the authority to make decisions across all areas of your life, if you are unable to make these decisions for yourself.

It is advisable to put in place an enduring power of attorney and enduring guardian at the time you make or update your will so that in the event you suffer from some unexpected event that results in you losing your capacity, you have in place the documents necessary for someone you trust to manage your affairs.
If you have not appointed someone as your attorney or guardian and you lose capacity, your family will need to make an application to the NSW Civil and Administrative Tribunal (NCAT) to be appointed as your attorney and guardian. If you have people competing to be appointed (eg your children do not get along) or if no one suitable is available or makes an application NCAT may appoint the Public Guardian to manage your affairs.

Contact us now if you would like to discuss appointing someone as your enduring power of attorney, enduring guardian and we will be happy to be of assistance!