Powers of Attorney & Enduring Guardian Law & Lawyers

TYPES OF POWERS OF ATTORNEY

A power of attorney is a document that gives a person (called either the donee, attorney or appointee) the power to act on behalf of the person or company who gives the power (called the donor, principal or appointor). There are laws that regulates general and enduring powers of attorney. It is important that a power-of-attorney accords with all relevant laws and regulations.

Giving a power of attorney is giving someone the authority to deal with your financial affairs. This is different from a power of guardianship, which enables another person to make personal decisions for you, for example, where you should live, recreation decisions or consenting to or refusing medical treatment. See Enduring Powers of Guardianship. These are both arrangements which allow a person to plan ahead, thereby providing a possible alternative to the involvement of the Guardianship Board at a later stage in someone's life.

If you would like a power-of-attorney drafted by a lawyer, if you would like legal help regarding any aspect of Powers of attorney, then please complete your free legal enquiry form to be put in contact with a lawyer experienced in preparing Powers of attorney and associated documentation.

In South Australia any person who is over 18 years and of sound mind can make a power of attorney. No-one else can make a power of attorney for you. The issue of whether someone under 18 years can make a power of attorney is the subject of some legal debate. If you are under 18 and considering giving a power of attorney, it is suggested you consult a lawyer.

There are two different forms of powers of attorney - they have similarities but there are some important differences.

A general power of attorney is an authority given to a donee to deal with a donor's financial affairs. For example, it allows a donee to buy and sell things or to operate a donor's bank account if he or she is away on holidays overseas.

An enduring power of attorney is a power of attorney that operates even though the donor is legally incapacitated, for example is unable to communicate after a stroke, or becomes senile. In these circumstances, a general power of attorney ceases to operate and actions taken under it after that time are invalid.

If you would like a power-of-attorney drafted by a lawyer, if you would like legal help regarding any aspect of Powers of attorney, then please complete your free legal enquiry form to be put in contact with a lawyer experienced in preparing Powers of attorney and associated documentation.

A general power of attorney and an enduring power of attorney both give an attorney authority to deal with a person's financial affairs. However, while a general power of attorney is cancelled automatically if a person becomes legally incapacitated, an enduring power of attorney will still be effective.

Giving either power of attorney does not mean you lose control over your affairs. A person can still deal with whatever matters he or she chooses, while the donee can only do the things that the form allows. However, giving a power of attorney to someone who is not absolutely trustworthy is very dangerous.

A power of attorney document provides proof of the donee's power to act on the donor's behalf. It must be shown whenever the donee is doing something in place of the donor.

It is not always necessary to make a power of attorney to deal solely with a social security pension, and other arrangements can generally be made to use a bank account on a person's behalf without going to the trouble, and risk, of making a power of attorney. However, it is unlawful to deal with someone else's money, no matter how close to you, without that person's authority.

A donor acting as a trustee or personal representative for another person cannot use a power of attorney to pass on these functions to someone else.

A power of attorney ends when the donor dies. At this point, a will takes over.

If you would like a power-of-attorney drafted by a lawyer, if you would like legal help regarding any aspect of Powers of attorney, then please complete your free legal enquiry form to be put in contact with a lawyer experienced in preparing Powers of attorney and associated documentation.

Enduring Guardianship

One way of planning for your own future is to appoint an enduring guardian. If you lose the capacity to make your own decisions, an enduring guardian can make personal decisions on your behalf, such as where you should live and what medical treatment and services you should receive.

The NSW legislation governing enduring guardianship is the Guardianship Act. An enduring guardian appointed under the NSW legislation can make decisions which will affect the person under guardianship when they are in NSW.

NSW also recognises the appointments of enduring guardians or their equivalents made under the law of other states and territories of Australia so that they can make decisions in NSW for people who appointed them.

Other states and territories of Australia have their own legislation governing enduring guardianship. Some, but not all, of the other Australian states and territories automatically recognise a NSW enduring guardianship appointment as legally valid in those states. This means the enduring guardian will be able to use it in those states. If you are planning to be in another state or move around Australia, you should find out whether the law in the other state to which you are planning to move will recognise a NSW enduring guardianship appointment. If the NSW enduring guardianship appointment is not recognised, you may wish to consider appointing an enduring guardian under the laws of that state or territory. For more information about guardianship laws in other states or territories, you should contact the interstate guardianship organisation. Their contact details can be found at the website for the Australian Guardianship and Administration Committee.

If you would like a enduring guardianship document drafted by a lawyer, if you would like legal help regarding any aspect of enduring guardianships, then please complete your free legal enquiry form to be put in contact with a lawyer experienced in preparing documents pertaining to enduring guardianships.

Reviews of enduring guardianship

The Tribunal can review the appointment of an enduring guardian on its own motion or at the request of anyone who the Tribunal considers has a genuine concern for the welfare of the person.

The Tribunal can suspend, revoke, confirm or vary the appointment of an enduring guardian. It can also declare the appointment has effect.

The appointment of an enduring guardian can only be revoked at the request of the appointed enduring guardian or if the Tribunal is satisfied that revocation is in the best interests of the person.

The Tribunal can appoint a substitute enduring guardian if the original enduring guardian has died, resigned or become incapacitated.

If you would like a enduring guardianship document drafted by a lawyer, if you would like legal help regarding any aspect of enduring guardianships, then please complete your free legal enquiry form to be put in contact with a lawyer experienced in preparing documents pertaining to enduring guardianships.

Links to Further Resources - Powers of Attorney & Enduring Guardian Law & Lawyers