A Will does not come into effect until death so an Executor cannot assist with any health or financial decisions in the event you are incapacitated, for either a short time or long-term.
In New South Wales, there are two roles that manage decisions in relation to your finances, any legal issues, medical and healthcare and lifestyle. Each role has different responsibilities.
These roles grant the role holder permission to make decisions in relation to your finances, healthcare, lifestyle and medical decisions. They can also make legal decisions on your behalf. If you were to fall ill, become injured and incapacitated even if only for a short period of time, who manages your affairs must be someone who has your best interests in mind and will follow your wishes. In NSW, if you have not nominated an Enduring Power of Attorney and an Enduring Guardian, then a friend or family member may nominate themselves and be granted the ability to make these decisions on your behalf.
Nominating an Enduring Power of Attorney and an Enduring Guardian is vital for you to have some control about what would happen to you if you were incapacitated for either a short time or long-term. Nominating these roles ensures that this person or people would be able make health or financial decisions for you without delay. Given the power these roles hold, who you nominate for both of these roles must be considered very carefully. An Enduring Power of Attorney involves the management of you legal and financial affairs whereas Enduring Guardianship makes decisions about your medical, healthcare and lifestyle decisions.
You may elect to have one person in both roles or you may have one or more people in each of these roles.
In NSW, when you nominate an Enduring Power of Attorney, they have the power to manage legal and financial decisions on your behalf, in the event your capacity to make decisions for yourself has been compromised. Importantly, this can be determined by a medical practitioner such as a doctor or medical specialist and there are a series of steps they must go through before making any kind of determination about your decision making capacity.
Other people say that the medical practitioner has to determine capacity, while others may specify that their attorney can determine when they lose capacity. Some people specify when the Enduring Power of Attorney is to come into effect. In some circumstances, people choose to make the Enduring Power of Attorney effective as soon as it is signed by everyone whereas others want it to become effective once they have lost capacity.
You may choose to nominate a Power of Attorney to assist you in managing your legal and financial affairs while you have capacity. This document becomes valid if you were to lose capacity and that it is why it is important to appoint an Enduring Power of Attorney which often comes into effect after a person loses capacity.
Whilst an Enduring Power of Attorney generally comes into effect when a person loses the ability to make decisions for themselves, there is the option for the Enduring Power of Attorney to come into effect immediately.
It is important that you nominate an Enduring Power of Attorney because it is not as simple as your next of kin being able to step in and make financial decisions on your behalf. Despite what most people believe, there are many hoops for them to jump through before they can be given authority to make any financial decisions, which can cause added angst if money is required quickly to access aged care, for instance.
Be aware that once a person loses their decision-making ability, an Enduring Power of Attorney cannot be made. A person who cannot make decisions themselves is considered unable to understand the consequences involved in creating a Power of Attorney.
If you lose capacity and an Enduring Power of Attorney has not been appointed, an application will need to be made to the Guardianship Division of NCAT to have a Financial Manager appointed for you. If there is no one suitable for the position, the Tribunal may appoint an independent public official called the Public Trustee.
In New South Wales, the other equally important role holder is that of an Enduring Guardian. This can be the same person or people as your Enduring Power of Attorney, or someone else.
A nominated Enduring Guardian has the power to make decisions on your behalf about your accommodation, healthcare and lifestyle as well as make medical decisions. It is wise to have a clear directive for the person you nominate as your Enduring Guardian. For the person or people in this role, making decisions about your health and lifestyle is a significant commitment and can prove overwhelming if there are disagreements between those close to you about what you would have wanted. That is where an Advance Care Directive along with the Enduring Guardianship is very important.
An Advance Care Directive is a set of directions that must be considered before any medical decisions are to be made on your behalf. These directions that can also include your values and wishes, are referenced in the event you are unable to communicate them yourself, or an authorised medical professional has assessed and confirmed that you have impaired or reduced capacity in decision making.
We help our clients document their wishes, values and directions to formalise their Advance Care Directives along with the nomination of an Enduring Power of Attorney and an Enduring Guardian.
If you lose capacity and an Enduring Guardian has not been appointed, an application will need to be submitted to the Guardianship Division of NCAT to have a Guardian appointed for you. If there is no one suitable for the position, the Tribunal may appoint an independent public official called the Public Guardian.
If the thought of this feels overwhelming, do not worry. We talk our clients through the key scenarios and make the process easy but thorough. Making the decision to appoint a Power of Attorney or Guardian can prove difficult. We fully appreciate the factors that will be weighed during the decision making process and would love to help you make your choice with ease by answering any questions you might have.
Reach out to us to organise a time to discuss and document your wishes. We can meet in person, online and upon request we can arrange home or hospital visits to accommodate your needs.
If you have not nominated people for these two roles, or it is not documented, a family member or friend may step forward to assist. Therefore, removing your choice as to exactly who will make these decisions for you. By nominating these roles, and having your goals and wishes documented in an Advance Care Directive, you can then be certain that the power that these roles hold, is given to the person or people you want to be in control.
ENDURING POWER OF ATTORNEY AND ENDURING GUARDIANSHIP
We can assist you with nominating and getting these roles in effect, as well as your Advance Care Directive. We meet clients in person, online or if required we can provide home or hospital visits upon request.
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SCB Legal’s knowledgeable team of estate lawyers are well versed in all matters relating to Enduring Power of Attorney and Guardianship. We help you navigate all the legal requirements and procedures. Thoughtful preparation and analysis is conducted to best cater to your specific needs.
If you would like support to nominate your Enduring Power of Attorney/s and Enduring Guardian/s our team can help. We can also take you through the process of documenting your wishes, goals and guidelines for your Advance Care Directive. This is to ensure it is as comprehensive as you wish, and to ensure your Enduring Guardian is aware the directive exists and where to locate it. This is in the event you have diminished capacity and are unable to make medical, healthcare and lifestyle decisions for yourself.
ENDURING POWER OF ATTORNEY AND ENDURING GUARDIANSHIP
Our team can help you set up your Advance Care Directive and follow the correct procedures to nominate your Enduring Power of Attorney & Guardian. We meet our clients in person, online or if required, we can provide home or hospital visits upon request.